设立中公司合同责任承担基本问题研究

发布时间：2018-07-26 15:52

【摘要】：公司的成立并不是一蹴而就的,它有一个较长的过程,特别是股份有限公司,需要进行大量的准备活动。但公司在成立前并不存在,且公司不可能自己去为自己的设立创造条件,这就需要发起人去实施公司的设立行为。发起人在公司从无到有的设立过程中所签订的合同即是设立中公司合同。由于设立中公司合同主体涉及到发起人、拟成立公司、设立中公司、相对人(第三人)等,且他们相互之间均可能产生权利义务关系,所以设立中公司合同不像一般合同中的双方主体那样简单明确,因此设立中公司合同的责任认定与划分更显复杂。合理设置各主体之间的权利义务,研究设立中公司合同责任认定及承担至为必要。设立中公司合同责任的承担问题在我国的立法上有相关规定,对发起人以自己名义以及设立中公司的名义签订的合同责任的归属都有相关立法。但因立法工作本身难以避免的局限性、滞后性,很多重要的基本概念无法清晰的表达,这便造成了以此为基础的相关法律制度构建的模糊与缺失。除此之外,由于经济的发展、相关制度的变化使得原有法律的规定已经不再适应当前经济社会发展需求,需要立法者根据当前实际情况完善修订。为达到高效、准确的立法,一则要对国外的相关立法进行学习、总结,二则要结合我国特色进行融会贯通。也只有在这基础上,设立中公司制度的立法才是科学的、有生命力的。当前我国市场经济快速发展,公司的设立活动在社会上更是频繁发生,设立中公司合同责任的立法问题应当给予足够的重视。立法思想可以归纳为“解决两个问题维护一个利益”,两个问题指设立中公司合同基本法律概念模糊以及新的经济因素导致的新问题,一个利益指发起人所享有的合法的特殊利益。解决上述问题方能建立科学的设立中公司责任承担制度。
[Abstract]:The establishment of the company is not accomplished overnight. It has a long process, especially the joint stock limited company, which needs a lot of preparatory activities. However, the company does not exist before its establishment, and it is impossible for the company to create conditions for its own establishment, which requires the initiator to carry out the establishment of the company. The contract signed by the promoters in the process of establishing the company from scratch is the contract under establishment. Since the subject of the contract involves the initiator, the company to be formed, the company to be established, the relative person (the third party), and so on, and they may have a relationship of rights and obligations among themselves, Therefore, the establishment of the company contract is not as simple and clear as the parties in the general contract, so the responsibility identification and division of the established company contract is more complex. It is necessary to reasonably set up the rights and obligations between the subjects and study the confirmation and undertaking of the contractual liability of the company in the process of establishment. The assumption of contractual liability of the established company has relevant provisions in the legislation of our country. It also has relevant legislation on the attribution of the contractual liability signed by the sponsors in their own name and in the name of the established company. However, due to the inevitable limitations and lag of the legislative work itself, many important basic concepts can not be clearly expressed, which leads to the ambiguity and lack of the construction of the relevant legal system based on this. In addition, due to the development of economy and the change of relevant system, the provisions of the original law no longer meet the needs of the current economic and social development, so it is necessary for the legislator to perfect the revision according to the current actual situation. In order to achieve efficient and accurate legislation, one should study and summarize the relevant legislation abroad, the other should integrate the characteristics of our country. Only on this basis, the legislation of the establishment of the company system is scientific and has vitality. At present, with the rapid development of market economy in our country, the establishment of companies occurs more frequently in the society. The legislation of contractual liability of companies in the process of establishment should be paid enough attention to. The legislative thought can be summed up as "solving two problems and maintaining one interest". Two problems refer to the ambiguity of the basic legal concept of the company contract and the new problems caused by the new economic factors. An interest refers to the legitimate special interest enjoyed by the initiator. In order to solve the above problems, we can establish a scientific system of corporate responsibility.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.291.91

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