外商投资企业法与公司法的主要规范冲突与解决
发布时间：2019-06-26 10:19
【摘要】： 2005年我国公司法做了较大幅度的修改,其立法目标和价值取向重在鼓励投资、繁荣经济。在具体规定上,资本制度由严格的法定资本制改为可分期缴纳的法定资本制,与三部外商投资企业法趋于一致;增加了关于一人有限责任公司的规定,改变了长期存在的国内主体和外国投资者关于设立一人有限责任公司的主体地位不平等的状况。国务院于2008年1月15日废除了《外商投资企业清算办法》,商务部在《商务部办公厅关于依法做好外商投资企业解散和清算工作的指导意见》(商法字[2008]31号)中规定外商投资企业的清算办法除外商投资法律、行政法规的特别规定外适用公司法;《关于外商投资的公司审批登记管理法律适用若干问题的执行意见》(国家工商总局工商外企字[2006]第81号)对外商投资的公司登记、出资期限、出资方式及组织机构做出更加贴近公司法的规定,进一步加强了外商投资企业法与公司法融合的趋势。 然而,公司法与外商投资企业法是不同时代的产物。外商投资企业法作为特别企业立法,不仅先于民法通则和公司法产生,而且涉及到外资规范问题,必然与公司法有着不同的规定进而产生矛盾与冲突。就外商投资企业法与公司法的规范冲突与解决,修订后的公司法第218条做出了原则性规定。然而无论是从法学理论层面还是从实践层而,该原则性规定没有能够很好的解决公司法与外商投资法的衔接适用问题,理论上存在着“新法优于旧法适用”,“特别法优于一般法适用”的争论,实践中外商投资企业多依据部委规章,地方性法规及政府规章进行适用。由于外商投资企业法律体系的庞大,加之各地执法过程中理解上的不同,在一定程度上加剧了法律适用的混乱。 本文拟针对上述问题,从公司法第218条的规定出发,采用比较的方法与解释的方法,对公司法与外商投资企业法的主要差异点进行分类与比较,并结合实践,在现有法律框架内与立法层面上对外商投资企业法与公司法的主要规范冲突提出解决方案。
[Abstract]:In 2005, the company law of our country was greatly revised, and its legislative goal and value orientation focused on encouraging investment and prospering the economy. In terms of specific provisions, the capital system has changed from strict legal capital system to payable legal capital system, which tends to be consistent with the three laws of enterprises with foreign investment; the provisions on one-person limited liability companies have been added, and the unequal status of the long-standing domestic subjects and foreign investors on the establishment of one-person limited liability companies has been changed. On January 15, 2008, the State Council abolished the measures for the liquidation of Enterprises with Foreign Investment. In the guiding opinions of the General Office of the Ministry of Commerce on the dissolution and liquidation of Enterprises with Foreign Investment in accordance with the Law (Commercial Law [2008] 31), the Ministry of Commerce stipulated that the liquidation measures for enterprises with foreign investment shall apply to the Company Law except for the special provisions of the laws and administrative regulations on foreign investment; Opinions on the Application of the Law on the examination and approval and Registration of companies with Foreign Investment (State Administration for Industry and Commerce [2006] No. 81) make provisions on the registration, duration, mode and organization of foreign-invested companies closer to the company law, thus further strengthening the trend of the integration of the law of foreign-invested enterprises and the company law. However, company law and foreign-invested enterprise law are the products of different times. As a special enterprise legislation, the law of foreign-funded enterprises not only comes into being before the general principles of civil law and company law, but also involves the norms of foreign capital, which must have different provisions from the company law and then produce contradictions and conflicts. On the conflict and solution between the law of foreign-invested enterprises and the company law, the revised article 218 of the company law makes the principle stipulation. However, whether from the theoretical level of law or from the practical level, the principle provision has not been able to solve the problem of convergence and application between company law and foreign investment law. In theory, there is a debate that "the new law is superior to the old law" and "the special law is superior to the general law". In practice, foreign-invested enterprises are mostly applied according to the rules of ministries and commissions, local laws and government rules. Because of the huge legal system of foreign-invested enterprises and the different understanding in the process of law enforcement, the confusion of law application is aggravated to a certain extent. In view of the above problems, starting from the provisions of Article 218 of the Company Law, this paper classifies and compares the main differences between the Company Law and the Law of Foreign-invested Enterprises by means of comparative method and interpretation, and puts forward some solutions to the conflict between the Law of Enterprises with Foreign Investment and the main norms of the Company Law within the existing legal framework and at the legislative level.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D922.291.91
本文编号：2506114
[Abstract]:In 2005, the company law of our country was greatly revised, and its legislative goal and value orientation focused on encouraging investment and prospering the economy. In terms of specific provisions, the capital system has changed from strict legal capital system to payable legal capital system, which tends to be consistent with the three laws of enterprises with foreign investment; the provisions on one-person limited liability companies have been added, and the unequal status of the long-standing domestic subjects and foreign investors on the establishment of one-person limited liability companies has been changed. On January 15, 2008, the State Council abolished the measures for the liquidation of Enterprises with Foreign Investment. In the guiding opinions of the General Office of the Ministry of Commerce on the dissolution and liquidation of Enterprises with Foreign Investment in accordance with the Law (Commercial Law [2008] 31), the Ministry of Commerce stipulated that the liquidation measures for enterprises with foreign investment shall apply to the Company Law except for the special provisions of the laws and administrative regulations on foreign investment; Opinions on the Application of the Law on the examination and approval and Registration of companies with Foreign Investment (State Administration for Industry and Commerce [2006] No. 81) make provisions on the registration, duration, mode and organization of foreign-invested companies closer to the company law, thus further strengthening the trend of the integration of the law of foreign-invested enterprises and the company law. However, company law and foreign-invested enterprise law are the products of different times. As a special enterprise legislation, the law of foreign-funded enterprises not only comes into being before the general principles of civil law and company law, but also involves the norms of foreign capital, which must have different provisions from the company law and then produce contradictions and conflicts. On the conflict and solution between the law of foreign-invested enterprises and the company law, the revised article 218 of the company law makes the principle stipulation. However, whether from the theoretical level of law or from the practical level, the principle provision has not been able to solve the problem of convergence and application between company law and foreign investment law. In theory, there is a debate that "the new law is superior to the old law" and "the special law is superior to the general law". In practice, foreign-invested enterprises are mostly applied according to the rules of ministries and commissions, local laws and government rules. Because of the huge legal system of foreign-invested enterprises and the different understanding in the process of law enforcement, the confusion of law application is aggravated to a certain extent. In view of the above problems, starting from the provisions of Article 218 of the Company Law, this paper classifies and compares the main differences between the Company Law and the Law of Foreign-invested Enterprises by means of comparative method and interpretation, and puts forward some solutions to the conflict between the Law of Enterprises with Foreign Investment and the main norms of the Company Law within the existing legal framework and at the legislative level.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D922.291.91
【引证文献】
相关期刊论文 前1条
1 邓志坚;;论我国国际私法新法与旧法的关系——《涉外民事关系法律适用法》第51条引发的思考[J];研究生法学;2012年02期
相关硕士学位论文 前1条
1 王月波;公司法视野下的外商投资企业法律适用问题研究[D];广西师范大学;2011年
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