论未出资股东对公司债权人的补充赔偿责任
发布时间：2018-09-18 20:14
【摘要】：我国《公司法》经历了 2013年的修订之后,废除了普通公司注册资本的最低限额要求,施行注册资本认缴登记制,关于股东的出资缴付数额、方式、时间均可由股东自行商定,并将其记载于公司章程之中。这更加符合现代市场经济下各投资种类的安排与需求,而股东的利益也得到了进一步的满足,与此同时也引发了理论界、实务界对于债权人保护问题的担心。认缴制下股东可以约定畸长的出资缴纳期限,或者不约定出资缴纳期限,因此当公司无法清偿债权人的到期债务,也未被申请破产,而股东的出资期限未到,债权人是否还能凭照《最高人民法院关于适用 中华人民共和国公司法若干问题的规定(三)》第十三条的规定,要求未到出资缴付期限的股东向其承担补充赔偿责任呢?对此,公司法及其相关的司法解释并未予以释明,学界对此也莫衷一是。本文便是在该问题的基础上,对此规定进行深入分析,进而得出因出资缴付期限未到从而未出资的股东也需向债权人承担补充赔偿责任,并且这一结论成果是有其理论与现实支撑的。本文第一部分,首先阐释补充赔偿责任的界定、其中包括性质、特征及其构成要件。紧接着便是在现今注册资本之认缴登记制的背景下,探究该制度的理论依据,通过梳理和分析现存的相关学说,融合法定债务理论与资本担保理论之正确方向,总结出公司法的特有理论依据,即股东的有限责任与公司责任财产理论,从而得出出资限期未到的股东须向债权人承担补充赔偿责任是有其理论上的支撑,并通过围绕注册资本制改革,进一步得出强化未出资股东向债权人承担补充赔偿责任这一救济途径是有其现实依据的。第二部分则是依据未出资股东向债权人承担责任制度的立法现状,分析现存的相关问题,具体包括:《公司法司法解释(三)》第13条第2款中“未履行或未全面履行出资义务”的解释问题;提前缴付出资的股东可否主张期限利益的问题;“公司不能清偿”的标准缺失问题;未出资股东对公司债权人承担补充赔偿责任制度的诉讼程序问题。第三部分则是为完善上述问题给出的相关建议。本文认为“未履行或未全面履行”应解释涵盖至出资缴付期限未到的股东;股东不可向债权人主张期限利益;“公司不能清偿”之标准应是公司必须经过强制执行程序之后确定。本文论题始于实践中产生的理论困境与司法实践困境,目的是希望通过研究分析,为该制度或者说该规定在认缴制下找到合理的理论支撑,同时基于理论依据对于该规定本身存在的问题,给出一些相对合理的完善建议。
[Abstract]:After the revision of the Company Law in 2013, the minimum requirement of registered capital of ordinary companies was abolished, and the registered capital subscription registration system was carried out. And record it in the articles of association. This is more in line with the arrangement and demand of various types of investment under the modern market economy, and the interests of shareholders are further satisfied. At the same time, it also leads to the concern of the theoretical and practical circles about the protection of creditors. Under the subscription system, shareholders may agree on an unusually long time limit for the contribution of capital contributions, or may not agree on a time limit for the payment of capital contributions. Therefore, when the company is unable to pay off the debts due of the creditors and has not been filed for bankruptcy, the time limit for the shareholders' contribution is not up. Can the creditor still require the shareholders who have not reached the time limit to pay the capital contribution to bear the supplementary liability for compensation in accordance with the provisions of the Supreme people's Court concerning the application of certain issues of the Company Law of the people's Republic of China (3) > Article 13? To this, the company law and its related judicial explanation have not been explained, the academic circle also does not agree on this. This article is on the basis of this question, carries on the thorough analysis to this stipulation, then draws the conclusion that because the capital contribution payment deadline has not come, the shareholder who does not have the capital contribution also has to bear the supplementary compensation liability to the creditor, And this conclusion has its theoretical and practical support. The first part of this paper first explains the definition of supplementary liability, including the nature, characteristics and components. Then, under the background of the present registered capital subscription registration system, this paper probes into the theoretical basis of the system, combs and analyzes the existing relevant theories, and combines the legal debt theory and the capital guarantee theory in the right direction. Summing up the unique theoretical basis of the company law, that is, the limited liability of shareholders and the theory of corporate liability property, so that shareholders who do not have a time limit to contribute to bear the supplementary liability to creditors is theoretically supported. Through the reform of the registered capital system, it is concluded that there is a realistic basis to strengthen the relief way of the unfunded shareholders to bear the supplementary liability to the creditors. The second part is based on the current legislative situation of the liability system of unfunded shareholders to creditors, and analyzes the existing related problems. It includes: the explanation of "not performing or not fully performing the obligation of capital contribution" in the second paragraph of Article 13 of the interpretation of Company Law, the question of whether the shareholders who pay the capital contribution in advance can claim the interests of the time limit; The lack of the standard of "the company cannot be paid off" and the litigation procedure of the system of compensatory liability of the unfunded shareholders to the creditors of the company. The third part is to perfect the above question to give the related suggestion. This paper holds that "not performing or not fully performing" should be interpreted to cover shareholders who have not paid their capital contributions until the time limit, and shareholders may not claim the interests of the term from the creditors. The standard of "company insolvent" shall be that the company must be determined after the enforcement procedure. The purpose of this thesis is to find reasonable theoretical support for the system or regulation under the subscription system through research and analysis. At the same time, based on the theoretical basis for the existing problems of the provision itself, some relatively reasonable suggestions are given.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91
[Abstract]:After the revision of the Company Law in 2013, the minimum requirement of registered capital of ordinary companies was abolished, and the registered capital subscription registration system was carried out. And record it in the articles of association. This is more in line with the arrangement and demand of various types of investment under the modern market economy, and the interests of shareholders are further satisfied. At the same time, it also leads to the concern of the theoretical and practical circles about the protection of creditors. Under the subscription system, shareholders may agree on an unusually long time limit for the contribution of capital contributions, or may not agree on a time limit for the payment of capital contributions. Therefore, when the company is unable to pay off the debts due of the creditors and has not been filed for bankruptcy, the time limit for the shareholders' contribution is not up. Can the creditor still require the shareholders who have not reached the time limit to pay the capital contribution to bear the supplementary liability for compensation in accordance with the provisions of the Supreme people's Court concerning the application of certain issues of the Company Law of the people's Republic of China (3) > Article 13? To this, the company law and its related judicial explanation have not been explained, the academic circle also does not agree on this. This article is on the basis of this question, carries on the thorough analysis to this stipulation, then draws the conclusion that because the capital contribution payment deadline has not come, the shareholder who does not have the capital contribution also has to bear the supplementary compensation liability to the creditor, And this conclusion has its theoretical and practical support. The first part of this paper first explains the definition of supplementary liability, including the nature, characteristics and components. Then, under the background of the present registered capital subscription registration system, this paper probes into the theoretical basis of the system, combs and analyzes the existing relevant theories, and combines the legal debt theory and the capital guarantee theory in the right direction. Summing up the unique theoretical basis of the company law, that is, the limited liability of shareholders and the theory of corporate liability property, so that shareholders who do not have a time limit to contribute to bear the supplementary liability to creditors is theoretically supported. Through the reform of the registered capital system, it is concluded that there is a realistic basis to strengthen the relief way of the unfunded shareholders to bear the supplementary liability to the creditors. The second part is based on the current legislative situation of the liability system of unfunded shareholders to creditors, and analyzes the existing related problems. It includes: the explanation of "not performing or not fully performing the obligation of capital contribution" in the second paragraph of Article 13 of the interpretation of Company Law, the question of whether the shareholders who pay the capital contribution in advance can claim the interests of the time limit; The lack of the standard of "the company cannot be paid off" and the litigation procedure of the system of compensatory liability of the unfunded shareholders to the creditors of the company. The third part is to perfect the above question to give the related suggestion. This paper holds that "not performing or not fully performing" should be interpreted to cover shareholders who have not paid their capital contributions until the time limit, and shareholders may not claim the interests of the term from the creditors. The standard of "company insolvent" shall be that the company must be determined after the enforcement procedure. The purpose of this thesis is to find reasonable theoretical support for the system or regulation under the subscription system through research and analysis. At the same time, based on the theoretical basis for the existing problems of the provision itself, some relatively reasonable suggestions are given.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91
【参考文献】
相关期刊论文 前10条
1 郭富青;;股东违反出资义务时的公司债权人求偿路径[J];财经法学;2016年03期
2 周s，
本文编号：2248998
本文链接：https://www.wllwen.com/falvlunwen/jingjifalunwen/2248998.html
