先公司交易法律问题研究
发布时间：2018-12-08 20:10
【摘要】： 先公司交易是公司尚未成立时的普遍现象。先公司交易的诸多问题关系到交易的稳定与安全,并影响各个主体之间风险与利益的分配。许多国家和地区的公司立法以及理论界对公司成立前的交易问题都给予了高度重视,而我国的相关立法存在诸多疏漏,给司法实践带来很大的困扰,这方面的理论研究也相当薄弱,很少有人对此进行深入系统的理论分析。因此,研究公司成立前交易法律问题具有重大的现实意义和理论意义。 依现代公司法,公司的成立以获准登记为准。从理论上讲,公司在成立前,因不具备法律人格而不能以公司名义同外界进行交易。与自然人人格取得不同,公司的设立,是一个发起人积极参与、涉及诸多法律事务的过程。在该过程中,发起人为促使公司成立,必然要进行必要的创设活动,甚至以公司的名义与第三人进行交易。这是公司设立中一个司空见惯的现象。同公司成立后的营业相比,公司设立是公司的非常状态,发起人在公司设立中的交易行为是在与第三人之间展开的,行为的后果则会涉及成立后的公司、债权人及发起人之间的风险和利益分配。如何确定公司成立前交易行为的效力,并不是传统民法合同理论所能够解决的。商事关系的调整需求,要求一些特殊规则予以满足。而这些特殊规则,无论从形式意义上还是从实质意义上,都不可能在一般法的民法的框架内完成,需要以特别法的形式实现,即商法规则。从各国的有关规定来看,公司设立中的交易行为制度所考虑的,主要是经济和社会问题,而把法律因素放在次要地位。有关规定的着眼点在于平衡发起人、第三人、以及成立后的公司之间的利益。公司法如何规范公司设立过程中的交易行为,需从先公司交易的内涵、概念入手,对其基本特征、构成要件、制度功能、效力的认定和责任归属问题进行系统分析,建立系统的先公司交易法律制度,以平衡各方主体之间的利益,保障交易的安全。
[Abstract]:First company trading is a common phenomenon when the company is not yet established. Many problems related to the stability and security of the transaction, and affect the distribution of risks and benefits among the main parties. In many countries and regions, the company legislation and the theory circle have attached great importance to the transaction problem before the establishment of the company. However, there are many omissions in the relevant legislation of our country, which brings great troubles to the judicial practice. The theoretical research in this area is also very weak, and few people make a deep and systematic theoretical analysis on it. Therefore, it is of great practical and theoretical significance to study the legal issues of trading before the establishment of the company. According to the modern company law, the establishment of the company shall be subject to the approval of registration. Theoretically speaking, before the company was founded, it could not deal with the outside world in the name of the company because of its lack of legal personality. Unlike the acquisition of natural person personality, the establishment of a company is a process in which the initiator actively participates and involves many legal matters. In this process, in order to promote the establishment of the company, the initiator must carry on the necessary creation activities, and even trade with the third party in the name of the company. This is a common phenomenon in the establishment of the company. Compared with the business after the establishment of the company, the establishment of the company is an extraordinary state of the company, and the transaction behavior of the initiator in the establishment of the company is carried out between the third party, and the consequences of the act will involve the company after the establishment. Distribution of risks and benefits between creditors and sponsors. How to determine the validity of the company's pre-establishment trading behavior is not a problem that can be solved by the traditional civil law contract theory. The demand for adjustment of commercial relations requires some special rules to be satisfied. However, these special rules can not be completed in the framework of the civil law of general law in both formal and substantive sense, and need to be realized in the form of special law, that is, the rules of commercial law. From the point of view of the relevant regulations of various countries, the system of transaction behavior in the course of the establishment of a company mainly considers economic and social problems, and puts the legal factor in the secondary position. The rules focus on balancing the interests of promoters, third parties, and established companies. In order to standardize the transaction behavior in the course of the establishment of a company, the company law should start with the connotation and concept of the first company transaction, and make a systematic analysis of its basic characteristics, constitutive requirements, system functions, validity and responsibility attribution. To balance the interests of the parties and ensure the security of the transaction, a systematic legal system of prior company transaction is established.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D922.291.91
本文编号：2368933
[Abstract]:First company trading is a common phenomenon when the company is not yet established. Many problems related to the stability and security of the transaction, and affect the distribution of risks and benefits among the main parties. In many countries and regions, the company legislation and the theory circle have attached great importance to the transaction problem before the establishment of the company. However, there are many omissions in the relevant legislation of our country, which brings great troubles to the judicial practice. The theoretical research in this area is also very weak, and few people make a deep and systematic theoretical analysis on it. Therefore, it is of great practical and theoretical significance to study the legal issues of trading before the establishment of the company. According to the modern company law, the establishment of the company shall be subject to the approval of registration. Theoretically speaking, before the company was founded, it could not deal with the outside world in the name of the company because of its lack of legal personality. Unlike the acquisition of natural person personality, the establishment of a company is a process in which the initiator actively participates and involves many legal matters. In this process, in order to promote the establishment of the company, the initiator must carry on the necessary creation activities, and even trade with the third party in the name of the company. This is a common phenomenon in the establishment of the company. Compared with the business after the establishment of the company, the establishment of the company is an extraordinary state of the company, and the transaction behavior of the initiator in the establishment of the company is carried out between the third party, and the consequences of the act will involve the company after the establishment. Distribution of risks and benefits between creditors and sponsors. How to determine the validity of the company's pre-establishment trading behavior is not a problem that can be solved by the traditional civil law contract theory. The demand for adjustment of commercial relations requires some special rules to be satisfied. However, these special rules can not be completed in the framework of the civil law of general law in both formal and substantive sense, and need to be realized in the form of special law, that is, the rules of commercial law. From the point of view of the relevant regulations of various countries, the system of transaction behavior in the course of the establishment of a company mainly considers economic and social problems, and puts the legal factor in the secondary position. The rules focus on balancing the interests of promoters, third parties, and established companies. In order to standardize the transaction behavior in the course of the establishment of a company, the company law should start with the connotation and concept of the first company transaction, and make a systematic analysis of its basic characteristics, constitutive requirements, system functions, validity and responsibility attribution. To balance the interests of the parties and ensure the security of the transaction, a systematic legal system of prior company transaction is established.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D922.291.91
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