有限责任公司股东退股法律问题研究

发布时间：2018-05-31 22:45

本文选题：有限责任公司 + 股东退股　；参考：《辽宁大学》2017年硕士论文

【摘要】：有限责任公司作为公司的存续形式之一,在我国众多企业类型之中占据重大比例,这种公司类型被众多投资者青睐,但是在此类公司形式中如何合法退出公司经营,减少对相应投资者的侵害,成为亟需解决的问题,对有限责任公司股东退股问题的研究也成为众多学者探讨的课题。有限责任公司因为自身特点——资合性与人合性兼顾,对于人合性,有限责任公司的股东人数相对较少,股东之间的联系紧密,对相互之间的信任要求较高,但是有限责任公司自身还存在着封闭性,并不同于股份有限责任公司的公开性,它的公司股权并不能在市场上自由流通、公开交易。在现实法律实务中,有限责任公司的大股东会依据资本多数决原则拥有较多的话语权,从而影响公司意志进而为获取收益,但是话语权较少的股东利益因为此项公司意志可能会受到损害,为这类股东提供救济就变得极为必要。目前,许多国家的立法都对股东退股有所规定,英美法系国家在实践的探索过程中也形成了一些指导性判例,2005年,有限责任公司股东退股的相关规定正式出台,修改后的《公司法》开始施行,但是只有七十五条一个单独的条文,而股东退股在实际操作过程当中面临的情况十分复杂,而公司法对相应程序的规定泛泛,实体规定淡薄。因而,国内有限责任公司股东退股必然有一定的不足,通过分析借鉴德日美的立法与实务经验,从股东退股的概念和理论基础开始,提出一些措施,保护公司与退股股东的双重利益。总而言之,本文分成四部分:第一部分,股东退股概述。从股东退股的概念、特征这两个方面入手,比较其他相似概念,继而把退股的具体含义进行明确;然后,从理论上分析股东退股的合理性,明确退股的可行性。第二部分,国外相关规定的分析及我国可以借鉴的具体措施。分析德日美三国在股东退股方面的规定,以上三个国家对退股的规定各有特色,而反观我国现有的规定会发现其中有很大的问题,我国可以从各国的具体措施中借鉴有益之处。第三部分,我国有限责任公司股东退股的立法现状及缺陷部分。结合现行《公司法》的具体规定,从现状入手,发现法律条文规定中存在的缺陷之处,从退股股东、公司、债权人的平衡需求入手,引导我国退股的相关问题的顺利解决。第四部分,结论。结合上文,对我国有限责仟公司股东退股存在的问题进行针对性解决,提出初步性的措施办法,缓解现实的法律困境。
[Abstract]:Limited liability company, as one of the existing forms of the company, occupies a significant proportion among the many enterprise types in our country. This kind of company type is favored by many investors, but in this kind of company form, how to legally withdraw from the company operation, It is urgent to solve the problem of reducing the infringement to the corresponding investors, and the research on the shareholder withdrawal of limited liability company has also become a topic discussed by many scholars. Because of its own characteristics, the limited liability company has a relatively small number of shareholders, a close relationship between shareholders, and a high requirement of mutual trust. However, the limited liability company has its own closed nature, which is different from the openness of the joint stock limited liability company, and its stock rights can not be freely circulated and traded publicly in the market. In the actual legal practice, the large shareholders of the limited liability company have more right to speak according to the principle of capital majority decision, which will influence the company's will and then obtain the income. But for shareholders with less say, because the company's will may be compromised, relief for such shareholders is essential. At present, the legislation of many countries has provisions on shareholder withdrawal, and some guiding cases have been formed in the course of practical exploration in Anglo-American legal system countries. In 2005, the relevant provisions of shareholder withdrawal of limited liability companies were formally issued. The revised Company Law has been put into effect, but only 75 articles have a separate provision, and the situation that shareholders face in the actual operation process is very complicated. The company law has a general stipulation on the corresponding procedure, but the substantive provisions are weak. Therefore, there must be some deficiencies in shareholder withdrawal of domestic limited liability companies. Through the analysis of the legislative and practical experience of Germany, Japan and the United States, some measures are put forward starting with the concept and theoretical basis of shareholder withdrawal. To protect the dual interests of the company and the withdrawing shareholders. To sum up, this paper is divided into four parts: the first part, the overview of shareholder withdrawal. Starting with the concept and characteristics of shareholder withdrawal, this paper compares other similar concepts, then clarifies the specific meaning of withdrawal; then, theoretically analyzes the rationality of shareholder withdrawal, and clarifies the feasibility of withdrawal. The second part, the analysis of the relevant provisions of foreign countries and the specific measures that our country can use for reference. By analyzing the provisions of the three countries on shareholder withdrawal, the above three countries have their own characteristics. However, if we look at the existing regulations of our country, we will find that there are great problems, and we can draw lessons from the concrete measures of other countries. The third part, the legislation status and defect of shareholder withdrawal of limited liability company in our country. Combined with the specific provisions of the current Company Law, this paper starts with the present situation, finds out the defects in the provisions of the law, starts with the balanced demand of the shareholders, companies and creditors, and guides the smooth solution of the problems related to the withdrawal of shares in our country. The fourth part, conclusion. In combination with the above, the problems existing in the stockholders' withdrawal from China's limited liability company are solved, and preliminary measures are put forward to alleviate the practical legal dilemma.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91

【参考文献】