有限责任公司隐名出资人身份及权责研究

发布时间：2018-02-14 01:06

本文关键词： 有限责任公司隐名出资人出资人法律身份权利与责任　出处：《哈尔滨商业大学》2017年硕士论文　论文类型：学位论文

【摘要】：最高人民法院《关于适用中华人民共和国公司法若干问题的规定(三)》(以下简称《公司法解释三》)将隐名出资人表述为"实际出资人"。现实生活中,隐名出资人与名义出资人或称为"名义股东"多因隐名出资人法律身份的确定发生纠纷,这是因为隐名出资人法律身份的界定是其享有权利、获取利益及承担责任的基础。同时,隐名出资在一定程度上也加大了第三方利益体的信赖风险。案由上,隐名出资人的身份界定一般被确定为股东资格确认纠纷。但也存在隐名出资人仅确认实际出资人身份而不确认股东资格的诉求,对于是否确认存在分歧,应支持仅确认"实际出资人"的请求,这是因为该请求权是以财产权益的获取为基础。确认所有权是为了确认物权,确认实际出资人目的则是为了索要投资权益,故不能将确认实际出资人的请求等同于确认股东资格,实际出资人也具备法律身份,但与股东资格所享有的权利与权益不能等同。隐名出资在实践中纠纷不断,虽然《公司法解释三》适时出台,但不能解决生活中隐名出资的所有矛盾。出现隐名出资的原因很多,有合理、合法原因如企业改制、单纯个人因素,也有法律严厉禁止的非法原因。因此,应区别对待从而确认隐名出资人的合法法律身份。隐名出资之所以大量存在,必定是社会经济发展过程中的经济"产物",比如"挂靠"现象在建筑行业居多,这其实也是隐名出资,个人或企业不具备施工资质,与有资质的企业签订合同,采取收取"管理费"的形式进行施工,期间的投入都由不具备资质的个人或企业所出,这些都是隐名出资的行为。尽管合同法及建设工程施工合同的解释确认相关合同无效,但却肯定实际出资施工产生的劳动价值,这也间接肯定了隐名出资人财产权益的保护。在确定隐名出资人的法律身份后,应分析其享有的权利与责任,从而平衡因隐名出资发生法律关系的各方民事主体的权益。商事活动有其规范性,如果隐名出资总是矛盾纠纷不断,不利于合法隐名出资的存在,更不利于市场交易秩序的稳定,但隐名出资从某种程度上说又能满足企业资本多元化的需求,使社会上分散、闲置的资金转化为生产动力。隐名出资发生矛盾的原因归根结底是信任风险和利益归属,因此,在确定合法隐名出资人法律身份及责任承担的基础上,主张从保险制度规避风险的特点出发,借鉴信托制度的理念,以保险合同的形式将保险公司作为第三方引入到隐名出资的法律关系中,稳固、明确隐名出资人与名义股东间的法律关系与责任,并充分保护善意第三人的权益。
[Abstract]:The provisions of the Supreme people's Court on the Application of the Company Law of the people's Republic of China (3) > (hereinafter referred to as "Company Law interpretation III") describe the anonymous investor as "the actual investor". In real life, The dispute between the anonymous investor and the nominal investor or "nominal shareholder" arises from the determination of the legal identity of the anonymous investor, which is because the legal status of the anonymous investor is defined as its right. At the same time, the anonymous contribution also increases the trust risk of the third party interest to a certain extent. The identification of anonymous investors is generally defined as a dispute over the recognition of shareholders' qualifications. However, there is also a demand for anonymous investors to confirm only the identity of actual investors and not to confirm the qualifications of shareholders, and there are differences as to whether or not to confirm them. The request to recognize only the "actual investor" should be supported, since the claim is based on the acquisition of property rights. Ownership is recognized for the purpose of recognizing real rights, and the purpose of recognizing the actual investor is to claim an investment interest, Therefore, we cannot equate the request for confirmation of the actual investor with the qualification of the shareholders, and the actual investor also has legal status, but the rights and interests enjoyed by the shareholders are not equal. Although "Company Law explanation III" was introduced in due course, it could not solve all the contradictions of anonymous capital contribution in life. There are many reasons for anonymous capital contribution, there are reasonable and legitimate reasons, such as enterprise restructuring, pure personal factors, There are also illegal reasons which are strictly prohibited by law. Therefore, we should treat them differently to confirm the legal status of anonymous investors. It must be an economic "product" in the process of social and economic development. For example, the phenomenon of "linking up" is mostly in the construction industry. In fact, it is also an anonymous capital contribution. Individuals or enterprises do not possess construction qualifications and sign contracts with qualified enterprises. Construction is carried out in the form of a "management fee", during which input is made by an unqualified individual or enterprise, all of which are anonymous contributions. Although the contract law and the interpretation of the construction contract confirm that the relevant contract is null and void, However, it affirms the labor value produced by the actual capital contribution, which indirectly affirms the protection of the property rights and interests of the anonymous investors. After determining the legal status of the dormant investors, the rights and responsibilities enjoyed by them should be analyzed. So as to balance the rights and interests of the parties involved in the legal relationship of anonymous capital contribution. Commercial activities have their own norms, if anonymous capital contribution is always contradictory and disputes, which is not conducive to the existence of legal anonymous investment, It is even more detrimental to the stability of the order of market transactions, but to a certain extent, anonymous investment can also meet the needs of the diversification of enterprise capital and make the society scattered. The cause of contradiction between anonymous capital contribution is trust risk and interest attribution, therefore, on the basis of determining the legal identity and responsibility of the legal dormant investor, the reason of the contradiction between the idle capital and the production power is ultimately the trust risk and the interest attribution. Based on the characteristics of the insurance system to avoid risks, and drawing lessons from the concept of trust system, the author proposes to introduce the insurance company as a third party into the legal relationship of anonymous capital contribution in the form of insurance contract. Clarify the legal relationship and responsibility between anonymous investors and nominal shareholders, and fully protect the rights and interests of bona fide third parties.
【学位授予单位】：哈尔滨商业大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91

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