我国有限责任公司股权转让法律问题研究
发布时间：2019-04-17 11:16
【摘要】：有限责任公司的重要特点之一就是资本的封闭性,即其股权的转让在事实上和法律上存在诸多的限制。其本质的资合性特征要求公司资本维持不变,其股东不得在公司成立后任意抽回出资,只能在一定限制下转让其所有的股权。另外,由于其明显的人合性色彩,股东的个人信用及其相互关系直接影响到公司的风格甚至信誉,因此要求非特殊情形下固有的信赖关系不能轻易打破。资本的封闭必然导致其经营模式的不开放,而这对股权的受让方实现其股东权利无疑增加了风险。再且,其股权转让涉及的利益关系较为复杂,特别是有关其他非股权转让股东和善意第三方的利益如何保护的问题。新《公司法》在股权转让制度和规制上做出了重大的突破和创新,许多规范从无到有,从不完善到完善。但是,我国有关股权转让的相关规范与社会主义市场经济的发展需要上还有一段很长的距离,不完备的制度安排往往不能满足司法实践的迫切需求,各种问题还是此起彼伏,有待相关立法的进一步健全。本文紧紧围绕有限责任公司股权转让这一主线,以基本概念为切入点,从立法和实践这两个层面剖析其股权转让存在的主要问题,并提出完善相关制度的一些浅见。主要内容分为四部分:第一部分,以奠定把握本文整体脉络的基础为写作目的,对股权转让的相关概念进行阐述,明确股权及股权转让的基本内涵,并进一步分析有限公司股权转让的法理基础和基本原则。第二部分,从三个角度即有限公司股权的内部转让、外部转让和特殊转让来评述其股权转让在立法上的缺陷,并借鉴国外立法进行对比分析,以求在本文第四部分提出问题的解决方案。第三部分,与本文的第二部分遥相呼应,前部分从立法层面,后部分从司法实践角度对有限公司股权转让中遇到的现实问题进行梳理。这部分亦是从三个角度进行,即股权转让本身存在的问题、股权转让后出现的新问题、股权转让涉及的其他问题。第四部分,通过对文章前两部分的把握,并在总结前人经验的基础上,对有限公司股权转让制度的完善提出一些思考,以期在我国股权转让制度完善时提供参考。
[Abstract]:One of the important characteristics of a limited liability company is the closure of its capital, that is, there are many restrictions in fact and law on the transfer of its equity. Its essential capital characteristics require that the capital of the company remain the same, and its shareholders may not withdraw their capital contributions arbitrarily after the establishment of the company, but can only transfer all their shares under certain restrictions. In addition, because of its obvious personality, shareholders' personal credit and their relationships directly affect the company's style and even reputation, so it is not easy to break the inherent trust relationship under non-special circumstances. The closure of capital inevitably leads to the non-opening of its business model, which undoubtedly increases the risk for the transferee to realize the rights of its shareholders. Moreover, the interests involved in the transfer of shares are more complicated, especially about how to protect the interests of other non-equity transfer shareholders and bona fide third parties. The new Company Law has made a significant breakthrough and innovation in the system and regulation of the transfer of shares, many norms from scratch to existence, from imperfect to perfect. However, there is still a long distance between the relevant norms concerning the transfer of shares in China and the needs of the development of the socialist market economy. Incomplete institutional arrangements are often unable to meet the urgent needs of judicial practice, and all kinds of problems still arise one after another. The relevant legislation needs to be further improved. Focusing on the main line of equity transfer of limited liability companies, this paper analyzes the main problems existing in the transfer of shares from the aspects of legislation and practice from the perspective of basic concepts, and puts forward some views on perfecting the relevant system. The main content is divided into four parts: the first part, in order to lay the foundation of the overall context of this article for the purpose of writing, to explain the relevant concepts of equity transfer, to clarify the basic connotation of equity and equity transfer. And further analysis of the legal basis and basic principles of the equity transfer of limited companies. The second part, from three angles, namely the internal transfer, the external transfer and the special transfer, comments on the legislative defects of the equity transfer of the limited company, and draws lessons from the foreign legislation for comparative analysis. In order to solve the problem in the fourth part of this paper. The third part echoes the second part of this article, the former part from the legislative level, the latter part from the point of view of judicial practice to sort out the practical problems encountered in the transfer of equity in limited companies. This part is also carried out from three angles, namely, the problems existing in the share transfer itself, the new problems after the share transfer, and the other problems involved in the share transfer. The fourth part, through the grasp of the first two parts of the article, and on the basis of summarizing the previous experience, put forward some thoughts on the improvement of the ownership transfer system of limited companies, with a view to providing a reference for the perfection of the equity transfer system of our country.
【学位授予单位】：南昌大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.291.91
本文编号：2459372
[Abstract]:One of the important characteristics of a limited liability company is the closure of its capital, that is, there are many restrictions in fact and law on the transfer of its equity. Its essential capital characteristics require that the capital of the company remain the same, and its shareholders may not withdraw their capital contributions arbitrarily after the establishment of the company, but can only transfer all their shares under certain restrictions. In addition, because of its obvious personality, shareholders' personal credit and their relationships directly affect the company's style and even reputation, so it is not easy to break the inherent trust relationship under non-special circumstances. The closure of capital inevitably leads to the non-opening of its business model, which undoubtedly increases the risk for the transferee to realize the rights of its shareholders. Moreover, the interests involved in the transfer of shares are more complicated, especially about how to protect the interests of other non-equity transfer shareholders and bona fide third parties. The new Company Law has made a significant breakthrough and innovation in the system and regulation of the transfer of shares, many norms from scratch to existence, from imperfect to perfect. However, there is still a long distance between the relevant norms concerning the transfer of shares in China and the needs of the development of the socialist market economy. Incomplete institutional arrangements are often unable to meet the urgent needs of judicial practice, and all kinds of problems still arise one after another. The relevant legislation needs to be further improved. Focusing on the main line of equity transfer of limited liability companies, this paper analyzes the main problems existing in the transfer of shares from the aspects of legislation and practice from the perspective of basic concepts, and puts forward some views on perfecting the relevant system. The main content is divided into four parts: the first part, in order to lay the foundation of the overall context of this article for the purpose of writing, to explain the relevant concepts of equity transfer, to clarify the basic connotation of equity and equity transfer. And further analysis of the legal basis and basic principles of the equity transfer of limited companies. The second part, from three angles, namely the internal transfer, the external transfer and the special transfer, comments on the legislative defects of the equity transfer of the limited company, and draws lessons from the foreign legislation for comparative analysis. In order to solve the problem in the fourth part of this paper. The third part echoes the second part of this article, the former part from the legislative level, the latter part from the point of view of judicial practice to sort out the practical problems encountered in the transfer of equity in limited companies. This part is also carried out from three angles, namely, the problems existing in the share transfer itself, the new problems after the share transfer, and the other problems involved in the share transfer. The fourth part, through the grasp of the first two parts of the article, and on the basis of summarizing the previous experience, put forward some thoughts on the improvement of the ownership transfer system of limited companies, with a view to providing a reference for the perfection of the equity transfer system of our country.
【学位授予单位】：南昌大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.291.91
【参考文献】
相关期刊论文 前1条
1 江平,孔祥俊;论股权[J];中国法学;1994年01期
，本文编号：2459372
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