我国公司设立瑕疵的救济途径
发布时间：2018-07-29 08:24
【摘要】：公司作为现代市场经济中的个体,扮演着十分重要的角色。但是在公司设立过程中,可能存在着一些问题,从而导致公司设立无效,我们将这种行为称为公司设立瑕疵。公司设立瑕疵是指公司虽已经依法设立,于登记机关登记并取得了营业执照,但是存在着一些事实,这些事实导致公司不符合本国法律上公司设立的某些条件,从而导致公司在某些方面存在缺陷的情况。对于公司设立瑕疵问题的讨论,本文从理论背景和现实问题出发,通过对论题概念以及范围的界定,从而展开论述。首先,我国当前关于公司设立瑕疵问题的处理,存在着许多问题。经由学术理论界多年来的争论,主要分为两大派系,即否定说与肯定说,在分析了上述两大派系的理论主张之后,笔者发现,我国当前的理论研究主要围绕在如何撤销以及如何处理公司设立瑕疵问题,而却忽视了关于瑕疵公司的救济问题。由此,应当在处理公司设立瑕疵问题的同时,在一定程度上注重对瑕疵公司的救济,将注意力集中在救济途径上。通过对国外立法的考察,我们发现当今世界主要以三种模式来处理公司设立瑕疵问题,即行政撤销模式、司法救济模式以及商会救济模式。通过对这三种模式各自特点的比较,笔者注意到在构建设立瑕疵处理途径时,应当同时兼顾效率和安全。而通过对这三大模式的比较,最终得出了在我国应当适用以司法救济途径为原则,吸收其他模式优势的方式来处理公司设立瑕疵问题的结论。在对瑕疵进行合理分类,并划定诉讼主体的范围之后。结合各种救济途径的优势,笔者提出了在我国建立公司设立瑕疵救济之诉的构想,即在前置程序先行处理的情况下,将具有不同瑕疵类型的公司进行了分类,制度上进行了分流处理,在保证安全的同时,又兼顾了效率,从而维护了正常的市场交易秩序。
[Abstract]:The company, as an individual in the modern market economy, plays a very important role. However, there may exist some problems in the process of establishing a company, which leads to the invalidation of the establishment of the company. We call this behavior a defect in the establishment of a company. A defect in the establishment of a company refers to the fact that, although the company has been established according to law, registered with the registration authority and obtained a business license, there are some facts which lead to the fact that the company does not meet certain conditions for the establishment of a company under the laws of the country. This leads to the existence of defects in certain aspects of the company. For the discussion of the problem of the defect of the company's establishment, this paper starts from the theoretical background and the practical problem, through the definition of the concept and scope of the topic, and then begins to discuss. First of all, there are many problems in dealing with the defect of company establishment in our country. After years of controversy in the academic theorists, there are mainly two major factions, namely, the theory of negation and the theory of affirmation. After analyzing the theoretical claims of the two factions, the author finds that, The current theoretical research focuses on how to cancel and how to deal with the defect of the company, but neglects the remedy of the defective company. Therefore, we should pay attention to the remedy of the defective company to a certain extent, and pay attention to the remedy way while dealing with the problem of the defect in the company. Through the investigation of foreign legislation, we find that there are mainly three models to deal with the defect of company establishment in the world today, namely, administrative revocation model, judicial remedy model and chamber of commerce relief model. By comparing the characteristics of the three models, the author points out that the efficiency and safety should be taken into account in the construction of the way to deal with defects. Through the comparison of these three models, the conclusion that we should apply the principle of judicial remedy and absorb the advantages of other models to deal with the problem of the defect of the company is finally reached in our country. After a reasonable classification of defects and the delineation of the scope of the main body of litigation. Combined with the advantages of various relief approaches, the author puts forward the idea of establishing a defect remedy suit in China, that is, the companies with different defect types are classified under the condition that the pre-procedure is dealt with first. In order to maintain the normal order of market transaction, the system carries on the diversion treatment, at the same time guarantees the safety, also takes into account the efficiency.
【学位授予单位】：天津商业大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.291.91
[Abstract]:The company, as an individual in the modern market economy, plays a very important role. However, there may exist some problems in the process of establishing a company, which leads to the invalidation of the establishment of the company. We call this behavior a defect in the establishment of a company. A defect in the establishment of a company refers to the fact that, although the company has been established according to law, registered with the registration authority and obtained a business license, there are some facts which lead to the fact that the company does not meet certain conditions for the establishment of a company under the laws of the country. This leads to the existence of defects in certain aspects of the company. For the discussion of the problem of the defect of the company's establishment, this paper starts from the theoretical background and the practical problem, through the definition of the concept and scope of the topic, and then begins to discuss. First of all, there are many problems in dealing with the defect of company establishment in our country. After years of controversy in the academic theorists, there are mainly two major factions, namely, the theory of negation and the theory of affirmation. After analyzing the theoretical claims of the two factions, the author finds that, The current theoretical research focuses on how to cancel and how to deal with the defect of the company, but neglects the remedy of the defective company. Therefore, we should pay attention to the remedy of the defective company to a certain extent, and pay attention to the remedy way while dealing with the problem of the defect in the company. Through the investigation of foreign legislation, we find that there are mainly three models to deal with the defect of company establishment in the world today, namely, administrative revocation model, judicial remedy model and chamber of commerce relief model. By comparing the characteristics of the three models, the author points out that the efficiency and safety should be taken into account in the construction of the way to deal with defects. Through the comparison of these three models, the conclusion that we should apply the principle of judicial remedy and absorb the advantages of other models to deal with the problem of the defect of the company is finally reached in our country. After a reasonable classification of defects and the delineation of the scope of the main body of litigation. Combined with the advantages of various relief approaches, the author puts forward the idea of establishing a defect remedy suit in China, that is, the companies with different defect types are classified under the condition that the pre-procedure is dealt with first. In order to maintain the normal order of market transaction, the system carries on the diversion treatment, at the same time guarantees the safety, also takes into account the efficiency.
【学位授予单位】：天津商业大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.291.91
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