以对第三人债权出资的公司法规制研究

发布时间：2018-06-12 18:58

本文选题：注册资本认缴登记制度 + 第三人债权　；参考：《西南大学》2015年硕士论文

【摘要】：我国《公司法》在对待债权出资的态度上,总体经历了由完全否认到“政策性债转股”的有限尝试,再到“非政策性债转股”的进一步拓展,直至对以公司债权出资的认可,但是一直以来对以第三人债权出资的态度却不够明确。2013年修改的《公司法》确认了公司资本与登记制度改革的成果,在公司资本形成模式上,依然采用法定资本制,但在资本的缴纳方式上,不再限制股东、发起人首次缴纳出资的数额及分期缴纳期限,对注册资本认缴制进行进一步的改良；废除了公司注册资本最低限额制度；在出资形态的规制上,取消了对货币出资最低比例的限制及登记机关的验资要求,同时对公司设立的登记制度作出了相应修改。这一变革,使公司资产信用理念得以确立,行政机关在公司设立阶段的事前监管逐渐弱化,私人意思自治空间进一步得以扩展,同时也为以对第三人债权出资扫清了资本制度观念上的障碍。加之,近现代债权不断财产化,财产形式亦日趋债权化,债权让与制度和现物出资理论的日益完善,使以对第三人债权出资在新的公司资本制度下成为可能。然而,立法层面上,由于现行法律法规对以第三人债权出资直接规定的缺位,使得可用于出资的第三人债权范围以及债权出资过程中相关主体之间权利义务的配置缺乏相应的规范予以引导。实践中,对以第三人债权出资的运用只能参照已有法律法规及司法解释对“债转股”及非货币出资的相关规定,出现认定可用于债权出资的债权标准不一、当事人各方权利义务不清、责任保障不到位等情形。另外,注册资本认缴登记制度的运行在降低公司设立成本,激活市场的同时,一定程度上增大了以对第三人债权出资的固有风险。面对公司资本登记制度改革为以对第三人债权出资带来的机遇和挑战,若因未能及时有效的跟进相关立法,导致理论上可行的以对第三人债权出资,在具体操作中无法实施,使大量财产性权利遭到闲置,着实是浪费现有经济资源,不利于社会财富的整合和利用。因此,对以第三人债权出资的公司立法完善,一方面,需要借鉴传统民法中的债权让与理论和公司法资本制度中的出资制度,使对以第三人债权出资的规范更加具体化。首先,关于可用于出资的第三人债权范围：依据债权让与的构成要件及现物出资理论,其须是具备可让与性、单务性的合同债权,该合同债权可是货币债权亦可是非货币债权,可是到期债权亦可是未到期债权。其次,关于债权出资过程中,债权让与人、受让公司以及债务人的权利义务配置上：债权出资人承担向受让公司交付债权凭证,并通知债务人债权让与事实的义务；针对出资债权承担权利瑕疵担保责任。债务人对受让公司负有依约全面履行债务的义务,对出资债权承担质量瑕疵担保责任。除与债权出资人另有约定外,公司对债权出资人享有要求其为出资债权另行提供担保的权利,以及对债权出资人取得公司股份、享有股东权利的一定限制权。再者,对于现实中可能存在的债权实现风险,应完善以对第三人债权出资的责任约束机制,强化债权出资人、同意债权出资的其他股东以及未尽到忠实勤勉义务的高管、董事对债权出资的责任,以平衡股东的投资利益与公司交易相对人的交易利益。另一方面,需要从市场信用的构建角度出发,不断健全企业信用约束联动响应机制、完善公司信息公示制度,使企业信息公示化、透明化；这不但对于以对第三人债权出资来说,是防范出资过程中债权真实性风险的最有效手段,而且可以促使公司对自身商业信用的重视和培育,从整体上改善现有投资环境,形成良好的市场竞争氛围。
[Abstract]:In our country, the company law has experienced the limited attempt to invest in the creditor's rights in the whole, and then to the further expansion of the "non policy debt to equity swap" until the approval of the capital contribution of the company's creditor's right, but the attitude that has been invested with the third Party's claims is not clear enough for.2013 years to be revised. The company law confirms the results of the reform of the company's capital and registration system. In the form of the company's capital formation, the company still adopts the legal capital system, but in the way of paying the capital, the shareholder is no longer restricted, the initiator pays the amount of capital contribution and the period of payment by installments, and further improves the registered capital recognition system; and the company has abolished the company. The system of the minimum quota of registered capital; on the regulation of the form of capital contribution, the limitation of the minimum proportion of capital contribution and the requirements for the registration of the registration authorities are cancelled. At the same time, the registration system established by the company has been amended accordingly. This change makes the company's asset credit concept established, and the administrative organs supervise the establishment of the company in the period of the establishment of the company. Gradually, the private autonomy space is further expanded. At the same time, it also clears up the barriers to the concept of capital system in the capital contribution to the third person's creditor's rights. In addition, the modern creditor's right is constantly being converted to property, the form of property is becoming increasingly obligatory, the system of transfer of creditor's rights and the theory of present property investment are becoming more and more perfect, so as to make capital contribution to the creditor's right in the new third party. The company's capital system is possible. However, on the legislative level, due to the absence of the direct provisions of the current laws and regulations on the capital contribution of the third party, the allocation of the rights and obligations between the third persons who can be invested and the rights and obligations between the relevant subjects in the process of capital contribution are lack of the corresponding norms. In practice, third The application of the capital contribution of human rights can only refer to the relevant provisions of the existing laws and regulations and the judicial interpretation of the "debt to equity swap" and non monetary capital contribution, and it appears that the standard of the creditor's right to invest is different, the parties' rights and obligations are not clear, and the responsibility guarantee is not in place. In addition, the operation of the registration system of the registered capital is reduced to the public. When the company sets up the cost and activates the market, it increases the inherent risk to the third party's creditor's right to a certain extent. Facing the opportunity and challenge brought by the reform of the company's capital registration system to the third party's creditor's right, if it fails to follow the relevant legislation in time and effectively, it is theoretically feasible to invest in the creditor's right of the third party. The concrete operation can not be implemented, so that a large number of property rights are idle, it is really a waste of the existing economic resources and is not conducive to the integration and utilization of social wealth. Therefore, the legislation of the company funded by third people's claims is perfect. On the one hand, it is necessary to draw on the theory of the transfer of creditor's rights in the traditional civil law and the investment system in the capital system of the company law, It is more specific to the norms that are funded by the third party's claim. First, the scope of the third party creditor's right which can be used for capital contribution: according to the constituent elements of the assignment of the creditor's right and the theory of the present property investment, it must have a transferable and single contractual claim, but the creditor's right is also a non monetary claim, but the creditor's right to maturity may also be possible. It is an undue claim. Secondly, in the process of capital contribution, the obligee assignor, the assignee company and the debtor's rights and obligations allocation: the creditor of the creditor is responsible for the obligation to deliver the credit certificate to the assignee and inform the debtor of the creditor's right to transfer the facts; the debtor is responsible for the right defect guarantee against the creditor's right. The debtor has the right of the assignee. The company bears the obligation to fulfill the debt fully and assumes the liability for the guarantee of the quality defects of the capital contribution. Except as otherwise agreed with the creditor of the creditor's right, the company has the right to require the investor to provide a separate guarantee for the creditor's right to the creditor's rights, and the right to limit the shareholders' share of the shareholder's rights. In reality, the possibility of realizing the risk of creditor's rights should be perfected by the responsibility restraint mechanism for the contribution of the third party's creditor's right, strengthening the creditor's creditor, the other shareholders who agree with the creditor's rights, and the executives who have not done the duty of loyalty and diligence, the director's responsibility for the investment of the creditor's right, in order to balance the investment interest of the East and the transaction benefit of the relative person of the company. On the other hand, from the perspective of the construction of the market credit, we should constantly improve the linkage response mechanism of the enterprise credit constraints, perfect the company information publicity system, and make the enterprise information public and transparent. This is not only the most effective means to protect the third party's creditor's rights, but also be the most effective means to prevent the real risk of the creditor's right in the capital contribution process. In order to encourage the company to attach importance to and cultivate its own business credit, we should improve the existing investment environment as a whole and form a good market competition atmosphere.
【学位授予单位】：西南大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.291.91

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