我国有限责任公司股东除名问题研究
发布时间：2018-12-22 08:28
【摘要】：有限责任公司形式封闭、规模小,具有典型的人合性特征,股东间的信任合作关系是公司维持正常健康运营的基础。在出现离心股东作出严重损害公司利益的行为的情形时,往往会破坏股东l间的信任关系从而危及公司的人合性基础影响经营目的的实现甚至导致公司僵局,如何高效化解这一冲突矛予盾对各个国家来说都是一个重大问题。我国《公司法》目前为股东提供了一些救济途径,例如股权转让、股权回购、司法解散制度。但在公司被某一股东有意破坏,其他股东无法忍受继续与其共事的情况下,若是选择股权转让与股权回购的方式是背离了公平价值,因为这意味着没有过错的股东要离开自己苦心经营的公司,是股东无计可施、"劣币驱逐良币"的做法;司法解散意味着为了实现团体共同的目的建立起来的公司本身将不复存在,是股东与公司两败俱伤的做法,这些救济措施都会对善意股东、公司和社会造成损害。而应运而生的股东除名制度为有效解决这一困境提供了新的途径,因为更加公平高效的优势而得到广泛的认可。股东除名制度直接触及股东之间的身份关系,通过法定程序,将背离公司"向心力"违反所应承担的义务而严重损害公司利益的股东驱逐出公司,剥夺其股东资格,有利于解除股东间的信任危机,稳固公司有序运营的基础,避免不公正地牺牲其他股东和公司的整体利益,尽最大可能将伤害值降到最低。本选题的研究将从以下几个部分进行:第一,讨论股东除名制度的概念特征和其产生的理论基础;第二,以案例为基础进行我国股东除名制度的司法实证研究;第三,股东除名制度的适用条件;第四,股东除名制度的具体的程序规则;第五,股东除名制度将会产生的法律后果。后面三部分是在前两部分基础上对我国股东除名制度的完善适用进行的设想。第一部分主要介绍股东除名制度的概念特征和理论基础。从公司资本制度、股权的可剥夺、股东忠实义务等角度明确了支撑股东除名制度存在的理论基础,然后分析了股东除名制度相对于司法解散这种传统手段具有的价值功能,用法经济学分析论述股东除名制度不可替代的制度价值,为我国公司法引入股东除名制度提供了正当性。第二部分检讨了我国股东除名制度的司法现状,从近几年的案例入手分析本文研究的问题,分析了我国股东除名之诉基本概况以及不同法院对于股东除名问题的立场,对我国股东除名之诉中存在的问题进行了梳理和总结,进一步证明完善股东除名制度的必要性。第三部分为股东除名制度之除名事由。指出股东除名应是在公司存续的条件下解决公司僵局的最后手段,在借鉴德国法的基础上,提出除名事由可以分为法定除名事由和意定除名事由,并明确赋予章程就股东除名事由进行约定的自由应该遵循的限制以防止股东除名制度被滥用。第四部分为股东除名制度之除名程序。本文将其分为除名决议程序和救济程序,在除名程序方面,提出了应当采用首先用尽公司内部救济才能启动除名程序,并且对除名决议的规则进行了详细的探讨。然后规定补充救济程序保护被除名股东的利益。第五部分为股东除名制度之除名效果。明确对被除名股东的影响,即丧失股东资格和对其股权的处置,且为平衡公司和债权人的利益,公司、其他股东有权要求被除名股东承担相应的法律责任。同时,公司也应在除名完成之后立即进行工商变更登记。
[Abstract]:The limited liability company is closed, small in size, and has typical human-to-nature characteristics. The relationship between the shareholders' trust and cooperation is the basis of the company's normal and healthy operation. in the case of a case where a centrifugal shareholder makes a serious harm to the interests of the company, the trust relationship between the shareholders is often destroyed, thereby endangering the realization of the business purpose of the company's human-to-person basis and even leading to the company's deadlock, how to effectively solve this conflict is a major problem for each country. In our country, the Company Law> currently provides some relief to the shareholders, such as equity transfer, equity repurchase, and judicial dissolution system. But in the event that the company is deliberately destroyed by a shareholder and the other shareholders can't stand to continue to work with it, if it is the way to choose the transfer of the equity and the stock-back, it is a departure from the fair value, as it means that the shareholders who have no fault are to leave the company of their own business, It is the practice of the shareholders to be free to apply and "Deportation of a good coin"; the dissolution of the judicial means that the company which is established for the purpose of realizing the common purpose of the group will no longer exist, and it is the practice of both the shareholders and the company, and these remedies will cause damage to the good-faith shareholders, the company and the society. The emergence of the de-listing system provides a new way for the effective solution of this dilemma, which is widely accepted because of the more equitable and efficient advantages. The shareholder's de-listing system directly touches on the identity between the shareholders, and through the legal procedure, the shareholder who is seriously damaging the company's interests in violation of the obligations of the company's "centripetal force" and seriously damages the company's interests will remove the company, deprive the shareholders of the qualification of the shareholders, and be beneficial to the dissolution of the trust crisis among the shareholders, To stabilize the company's orderly operation, to avoid the unjust sacrifice of the overall interests of other shareholders and the company, and to minimize the injury value. The study of this topic will be carried out in the following parts: first, discuss the concept characteristics of the shareholder de-listing system and the theoretical basis of its production; secondly, carry out the judicial empirical study on the de-listing system of the shareholders based on the case; the third, the application conditions of the shareholder de-listing system; and the fourth, The specific procedure rules of the shareholder de-listing system; the fifth, the legal consequences of the shareholder de-listing system. The third part is the idea of the perfect application of the de-listing system of our shareholders on the basis of the first two parts. The first part mainly introduces the concept and theoretical basis of the shareholder de-listing system. From the perspective of the company's capital system, the disenfranchisement of the equity, the loyalty of the shareholders, etc., the theoretical basis of supporting the de-listing system of the shareholders is defined, and the value function of the shareholder's de-listing system with respect to the judicial disbandment is analyzed. The analysis of usage economics discusses the system value of the non-substitution of the shareholder's de-listing system, and provides the legitimacy for the introduction of the shareholder de-listing system in the company law of our country. The second part reviews the judicial status of the de-listing system in our country, analyzes the problems in this paper from the case of recent years, analyzes the basic situation of the delisting of our shareholders and the position of different courts on the delisting of the shareholders, The problems existing in the case of de-listing of the shareholders of our country are analyzed and summarized, and the necessity of improving the de-listing system of the shareholders is further proved. The third part is the de-listing of the delisting system of the shareholders. It is pointed out that the de-listing of the shareholders should be the last resort to solve the deadlock of the company under the condition of the existence of the company. It is also expressly conferred on the Articles of Association that the freedom to agree on the cause of the delisting of the shareholders should be subject to the restrictions that should be followed to prevent the abuse of the shareholder's de-listing system. The fourth part is the de-listing procedure of the shareholder de-listing system. This paper is divided into a de-listing procedure and a relief procedure. In the case of de-listing, it is proposed that the de-listing procedure should be initiated by the first exhaustion of the internal relief of the company, and the rules of the de-listing resolution should be discussed in detail. A supplementary relief procedure is then provided to protect the interests of the delisting shareholders. The fifth part is the de-listing effect of the shareholder de-listing system. The effect of the delisting shareholders, namely, the loss of the qualification of the shareholders and the disposal of the stock rights, and the interests of the balance company and the creditors, the company and other shareholders have the right to request the de-listed shareholders to bear the corresponding legal liabilities. At the same time, the Company shall immediately carry out the business change registration after the delisting is completed.
【学位授予单位】：北京外国语大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91
本文编号：2389571
[Abstract]:The limited liability company is closed, small in size, and has typical human-to-nature characteristics. The relationship between the shareholders' trust and cooperation is the basis of the company's normal and healthy operation. in the case of a case where a centrifugal shareholder makes a serious harm to the interests of the company, the trust relationship between the shareholders is often destroyed, thereby endangering the realization of the business purpose of the company's human-to-person basis and even leading to the company's deadlock, how to effectively solve this conflict is a major problem for each country. In our country, the Company Law> currently provides some relief to the shareholders, such as equity transfer, equity repurchase, and judicial dissolution system. But in the event that the company is deliberately destroyed by a shareholder and the other shareholders can't stand to continue to work with it, if it is the way to choose the transfer of the equity and the stock-back, it is a departure from the fair value, as it means that the shareholders who have no fault are to leave the company of their own business, It is the practice of the shareholders to be free to apply and "Deportation of a good coin"; the dissolution of the judicial means that the company which is established for the purpose of realizing the common purpose of the group will no longer exist, and it is the practice of both the shareholders and the company, and these remedies will cause damage to the good-faith shareholders, the company and the society. The emergence of the de-listing system provides a new way for the effective solution of this dilemma, which is widely accepted because of the more equitable and efficient advantages. The shareholder's de-listing system directly touches on the identity between the shareholders, and through the legal procedure, the shareholder who is seriously damaging the company's interests in violation of the obligations of the company's "centripetal force" and seriously damages the company's interests will remove the company, deprive the shareholders of the qualification of the shareholders, and be beneficial to the dissolution of the trust crisis among the shareholders, To stabilize the company's orderly operation, to avoid the unjust sacrifice of the overall interests of other shareholders and the company, and to minimize the injury value. The study of this topic will be carried out in the following parts: first, discuss the concept characteristics of the shareholder de-listing system and the theoretical basis of its production; secondly, carry out the judicial empirical study on the de-listing system of the shareholders based on the case; the third, the application conditions of the shareholder de-listing system; and the fourth, The specific procedure rules of the shareholder de-listing system; the fifth, the legal consequences of the shareholder de-listing system. The third part is the idea of the perfect application of the de-listing system of our shareholders on the basis of the first two parts. The first part mainly introduces the concept and theoretical basis of the shareholder de-listing system. From the perspective of the company's capital system, the disenfranchisement of the equity, the loyalty of the shareholders, etc., the theoretical basis of supporting the de-listing system of the shareholders is defined, and the value function of the shareholder's de-listing system with respect to the judicial disbandment is analyzed. The analysis of usage economics discusses the system value of the non-substitution of the shareholder's de-listing system, and provides the legitimacy for the introduction of the shareholder de-listing system in the company law of our country. The second part reviews the judicial status of the de-listing system in our country, analyzes the problems in this paper from the case of recent years, analyzes the basic situation of the delisting of our shareholders and the position of different courts on the delisting of the shareholders, The problems existing in the case of de-listing of the shareholders of our country are analyzed and summarized, and the necessity of improving the de-listing system of the shareholders is further proved. The third part is the de-listing of the delisting system of the shareholders. It is pointed out that the de-listing of the shareholders should be the last resort to solve the deadlock of the company under the condition of the existence of the company. It is also expressly conferred on the Articles of Association that the freedom to agree on the cause of the delisting of the shareholders should be subject to the restrictions that should be followed to prevent the abuse of the shareholder's de-listing system. The fourth part is the de-listing procedure of the shareholder de-listing system. This paper is divided into a de-listing procedure and a relief procedure. In the case of de-listing, it is proposed that the de-listing procedure should be initiated by the first exhaustion of the internal relief of the company, and the rules of the de-listing resolution should be discussed in detail. A supplementary relief procedure is then provided to protect the interests of the delisting shareholders. The fifth part is the de-listing effect of the shareholder de-listing system. The effect of the delisting shareholders, namely, the loss of the qualification of the shareholders and the disposal of the stock rights, and the interests of the balance company and the creditors, the company and other shareholders have the right to request the de-listed shareholders to bear the corresponding legal liabilities. At the same time, the Company shall immediately carry out the business change registration after the delisting is completed.
【学位授予单位】：北京外国语大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91
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