国有股东无偿转让上市公司股份法律问题研究

发布时间：2018-08-29 12:43

【摘要】：规定国有股东转让上市公司的股份的相关的法律有很多,比如《中华人民国和国证券法》、《国宥资产法》、国务院颁布的《企业国有资产产权登记管理办法》、财政部颁布的《企业国有资产产权登记管理办法实施细则》、国资委和财政部联合颁发的《企业的国有产权转让管理办法》、国资委单独颁布的《企业国有产权无偿划转管理暂行办法》、《企业国有资产评估管理暂行办法》等,但这些法律中,对于无偿转让都设置了比较繁复的程序,因此可能会造成国有股东无偿转让的障碍,与此同时,国有资产在无偿转让的过程中如何监管也缺少相应的规定,本文就是通过对股份转让的关联方界定、关联关系的梳理以及在无偿转让过程中利益相关人的关系处理,在此基础上进一步研究国有资产在此过程中的监管问题这几个方面进行论述,以使得国有股东无偿转让上市公司的制度更趋于合理、健全。通过实证研究、理论研究以及比较研究的方法,结合实际中的案例进行分析,在与法律基础理论相联系的基础上,溯本求源,和国外先进立法的比较,相互借鉴,完善立法。由此我们得到如下结论：国有资产的无偿转让不仅关系转出方与转入方的公司个体利益,更关系债权人、企业职工利益,从国有资产角度甚至关系国计民生问题,对我国国民经济良好运行有着重要影响。国有公司之间的行为不但要考虑商法上强调的效率,更需考虑国有资产本身的安全。在无偿转让问题上,应是安全价值高于效率价值。
[Abstract]:There are many laws governing the transfer of shares of listed companies by state-owned shareholders, For example, the Securities Law of the people's Republic of China and the State, the Law on assets of State forgiveness, the measures for the Registration and Administration of property Rights of State-owned assets of Enterprises promulgated by the State Council, the detailed rules for the implementation of measures for the Registration and Administration of property Rights of State-owned assets of Enterprises promulgated by the Ministry of Finance, The measures for the Administration of the transfer of State-owned property Rights of Enterprises jointly issued by the CPC Committee and the Ministry of Finance, the interim measures on the Administration of the Free transfer of State-owned property Rights of Enterprises promulgated by the SASAC separately, the interim measures on the Evaluation and Administration of State-owned assets of Enterprises, etc. However, in these laws, there are more complicated procedures for free transfer, which may result in obstacles to the free transfer of state-owned shareholders. At the same time, there is also a lack of corresponding regulations on how to supervise and control state-owned assets in the process of free transfer. This article is through the definition of the related party of the share transfer, the combing of the related relationship and the handling of the relationship between the stakeholders in the process of free transfer. On this basis, this paper further studies the supervision of state-owned assets in this process, in order to make the system of state-owned shareholders transfer to listed companies more reasonable and perfect. Through empirical research, theoretical research and comparative study, combined with practical cases to analyze, on the basis of the basic theory of law, tracing back to the source, and foreign advanced legislation comparison, mutual reference, perfect legislation. From this, we draw the following conclusions: the free transfer of state-owned assets is not only related to the individual interests of the transferor and the transferee, but also to the interests of creditors and employees of the enterprise. From the angle of state-owned assets, it even has a bearing on the national economy and people's livelihood. It has an important influence on the good operation of our national economy. The behavior of state-owned companies should not only consider the efficiency emphasized in commercial law, but also the security of state-owned assets. On the issue of free transfer, the safety value should be higher than the efficiency value.
【学位授予单位】：北方工业大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.291.91

【参考文献】