认缴制下有限责任公司股东除名制度研究

发布时间：2018-03-26 10:28

本文选题：股东除名　切入点：认缴制　出处：《河南财经政法大学》2017年硕士论文

【摘要】：有限责任公司股东除名制度对维护守信股东和公司的利益有很大的帮助,德国、美国等国家在立法上对着股东除名制度进行了比较详细的规定。而我国公司法对股东除名制度并没有形成一般性的规定,只是在公司法司法解释(三)中规定了股东未出资或者抽逃全部出资两种情形下,可以对股东进行除名。在司法实践中,出现了比较多的意定除名的情形,对此,我国法律未做规定,导致出现了判决不统一的现象。学界对股东除名制度的看法不尽相同,整体上对该制度是持肯定态度的,因此近年来支持股东除名制度立法的呼声越来越高,但对我国公司法进行的历次修改中,都未对股东除名制度进行实质性建设。但在公司法的历次修改中,公司注册资本制度都进行了改变,特别是在2014年彻底的将注册资本实缴制变为了认缴制,我国也正式确立了有限责任公司注册资本认缴制。毫无疑问,认缴制的确立对于我国经济发展和建设有着积极的重大意义,但由于我国公司法司法解释(三)规定了股东未出资或者抽逃全部出资两种情形进行股东除名,导致有限责任公司的股东除名制度和注册资本关系密切,因此,在注册资本变为认缴制的背景下,股东除名制度出现了一些新的问题,需要我们加以分析,以保障该制度在司法实践中的合理适用。注册资本变为认缴制对有限责任公司除名制度产生的影响;该制度下股东除名制度是否有必要存在;以及我国司法实践对认缴制下股东除名制度的实行持有的态度说法不一。但是,研究发现股东除名制度在司法实践中有其特殊的作用,在我国公司法体系中是有存在的必要的,但该制度相关立法还需要进一步完善。另外,在认缴制施行后,股东除名在司法实践中也出现了新情形,在处理股东未出资和抽逃全部资金问题上,公司法司法解释第十八条出现明显不足,所以,加强股东除名相关立法,不断完善股东除名事由、程序和维护债权人及被除名股东权益等各方面,对我国意义重大。本文也将以认缴制下的股东除名制度为中心,结合我国有限责任公司的现状,探求认缴制下股东除名制度的发展方向。
[Abstract]:The shareholder delisting system of a limited liability company is of great help in safeguarding the interests of trustworthy shareholders and the company. The United States and other countries have made more detailed provisions on the system of shareholder delisting in legislation. However, the company law of our country has not formed a general regulation on the system of removing shareholders from the company. It is only in the judicial interpretation of the Company Law (3) that shareholders may be removed from the company under the circumstances that shareholders have not contributed or all their capital contributions have been withdrawn. In judicial practice, there have been more cases of mandatory delisting, and this is the case. The lack of provisions in our laws has led to the phenomenon of inconsistent judgments. Scholars have different views on the system of removing the shareholder, and have a positive attitude towards the system as a whole. Therefore, in recent years, the voice of supporting the legislation of shareholder delisting system has become more and more high, but none of the previous amendments to the Company Law of our country has carried out substantial construction of the system of removing the shareholder's name. However, in the previous amendments of the Company Law, The company registered capital system has been changed, especially in 2014, the registered capital paid-in system has been completely changed into the subscription system, and the limited liability company registered capital subscription system has been formally established in our country. There is no doubt that the limited liability company registered capital subscription system has been established. The establishment of the subscription system is of great significance to the economic development and construction of our country. However, due to the judicial interpretation of the Company Law of China, (3) it stipulates that the shareholders do not contribute or withdraw all the capital to remove the shareholder. As a result of the close relationship between the shareholder delisting system and the registered capital of a limited liability company, under the background of the change of registered capital into a subscription system, there are some new problems in the shareholder delisting system, which need to be analyzed. In order to ensure the reasonable application of the system in judicial practice, the impact of the system of registered capital into subscription on the delisting system of limited liability company, whether the shareholder delisting system is necessary or not; And the judicial practice of our country holds different attitudes towards the implementation of shareholder delisting system under the subscription system. However, the study finds that the shareholder delisting system has its special role in judicial practice, and it is necessary to exist in the company law system of our country. However, the relevant legislation of this system still needs to be further improved. In addition, after the subscription system has been implemented, there has also been a new situation in the judicial practice of shareholder delisting. In dealing with the problem of shareholders' failure to invest and withdraw all funds, Article 18 of the Judicial interpretation of the Company Law is obviously inadequate. Therefore, we should strengthen the relevant legislation on the expulsion of shareholders, constantly improve the reasons for the removal of shareholders, the procedure and the protection of the rights and interests of creditors and the shareholders who have been expelled, and so on. It is of great significance to our country. This paper will also focus on the shareholder delisting system under the subscription system and explore the development direction of the shareholder delisting system under the subscription system in combination with the present situation of the limited liability companies in our country.
【学位授予单位】：河南财经政法大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91

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