冒名处分他人股权法律问题研究
发布时间：2018-09-18 08:14
【摘要】：我国处于社会转型的关键时期,经济高速发展而相应的道德建设不到位致使社会诚信意识淡薄,加上相应的制度保障的缺失,冒名处分他人股权的现象层出不穷。冒名处分他人股权严重危害了市场交易秩序,损害了原股权人、交易相对人、公司和公司其他股东以及后续股权转让后手的利益。但是,学界并未对该问题给予重视,且仅有的研究也集中在以无权处分和无权代理等传统的民法观点来分析,有拿来主义之嫌。冒名处分股权不是民法上的无权处分,无权处分人需为工商登记权利人,而被转让的股权并非登记在冒名人名下。冒名处分他人股权也不同于无权代理,与冒名人交易的相对人认为冒名人即股权所有人,不存在第三方当事人;而无权代理中相对人认为与其实际交易的对象是被代理人,与其直接接触的人是代理人。实务中对该问题的判定也大相径庭,故有必要对冒名处分股权问题进行系统梳理,探究一套合理可行的解决问题的机制。冒名处分股权不同于冒名股东以及名义股东处分代持股份的情形,是股权转让中具有独特性质的一类型,具有意思虚假、印签伪造、形式非法等特征。由于冒名处分他人股权的复杂性和层次性,对其效力的认定是解决这一问题的重要环节,涉及到冒名处分股权行为和签订的协议的效力的认定及冒名处分他人股权致股权发生实际转让的法律效力。当事人无合意及商事外观主义原则有利于对冒名处分他人股权的效力作出判断。外观主义对于判定股权的最终归属极具优势,有利于该问题科学顺畅的解决。遏制冒名处分他人股权的发生最终要落实到责任的承担。由于商事活动影响范围广泛,在维护公平的同时更应兼顾交易安全和效率,确立归责原则至关重要,在保护原股权人的同时不破坏市场活动的持续健康发展。
[Abstract]:Our country is in the critical period of social transformation, the rapid development of economy and the corresponding moral construction are not in place, resulting in a weak sense of social integrity, coupled with the lack of corresponding system protection, the phenomenon of impersonation of other people's equity rights appears one after another. Impersonating the rights of others seriously endangers the order of market transactions, and damages the interests of the original stockholders, the relative parties, the company and other shareholders of the company and the subsequent shareholders of the company. However, scholars do not pay attention to this issue, and the only research focused on the unauthorized disposition and unauthorized agency and other traditional views of civil law analysis, there is a suspicion of doctrine. It is not the unauthorized disposition in civil law to dispose the shares under false name, and the person who has no right to dispose is the holder of the right of industrial and commercial registration, while the transferred equity is not registered in the name of the impostor. The opposite party who deals with the impostor thinks that the impostor is the owner of the stock right, and there is no third party, while the relative party in the unauthorized agent thinks that the object of the transaction with the impostor is the principal. The person in direct contact with him is an agent. In practice, the judgment of this problem is also quite different, so it is necessary to systematically sort out the issue of impersonating the disposition of equity, and to explore a reasonable and feasible mechanism to solve the problem. The disposition of shares under false name is different from that of share-holders by share-holders and nominal shareholders. It is a kind of special nature in the transfer of shares, which has the characteristics of false intention, forged stamp, illegal form, and so on. Because of the complexity and hierarchy of the impersonation of other people's equity, the determination of its effectiveness is an important link to solve this problem. It involves the confirmation of the validity of the action and the agreement signed, and the legal effect of the actual transfer of the shares caused by the false disposition of the shares of others. The principle of disapproval and commercial appearance is helpful to judge the effect of dishonest disposition of other people's shares. Externalism has great advantages in judging the ownership of equity, and is conducive to the scientific and smooth solution of the problem. To curb the occurrence of false disposition of other people's equity rights, the ultimate implementation of the responsibility. Because of the extensive influence of commercial activities, it is necessary to maintain fairness and give consideration to transaction security and efficiency. It is very important to establish the principle of imputation, which not only protects the original stockholders, but also does not destroy the sustained and healthy development of market activities.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.291.91
[Abstract]:Our country is in the critical period of social transformation, the rapid development of economy and the corresponding moral construction are not in place, resulting in a weak sense of social integrity, coupled with the lack of corresponding system protection, the phenomenon of impersonation of other people's equity rights appears one after another. Impersonating the rights of others seriously endangers the order of market transactions, and damages the interests of the original stockholders, the relative parties, the company and other shareholders of the company and the subsequent shareholders of the company. However, scholars do not pay attention to this issue, and the only research focused on the unauthorized disposition and unauthorized agency and other traditional views of civil law analysis, there is a suspicion of doctrine. It is not the unauthorized disposition in civil law to dispose the shares under false name, and the person who has no right to dispose is the holder of the right of industrial and commercial registration, while the transferred equity is not registered in the name of the impostor. The opposite party who deals with the impostor thinks that the impostor is the owner of the stock right, and there is no third party, while the relative party in the unauthorized agent thinks that the object of the transaction with the impostor is the principal. The person in direct contact with him is an agent. In practice, the judgment of this problem is also quite different, so it is necessary to systematically sort out the issue of impersonating the disposition of equity, and to explore a reasonable and feasible mechanism to solve the problem. The disposition of shares under false name is different from that of share-holders by share-holders and nominal shareholders. It is a kind of special nature in the transfer of shares, which has the characteristics of false intention, forged stamp, illegal form, and so on. Because of the complexity and hierarchy of the impersonation of other people's equity, the determination of its effectiveness is an important link to solve this problem. It involves the confirmation of the validity of the action and the agreement signed, and the legal effect of the actual transfer of the shares caused by the false disposition of the shares of others. The principle of disapproval and commercial appearance is helpful to judge the effect of dishonest disposition of other people's shares. Externalism has great advantages in judging the ownership of equity, and is conducive to the scientific and smooth solution of the problem. To curb the occurrence of false disposition of other people's equity rights, the ultimate implementation of the responsibility. Because of the extensive influence of commercial activities, it is necessary to maintain fairness and give consideration to transaction security and efficiency. It is very important to establish the principle of imputation, which not only protects the original stockholders, but also does not destroy the sustained and healthy development of market activities.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.291.91
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