股权变动中的股东资格认定
发布时间：2018-11-23 20:37
【摘要】：股权问题是常见的公司纠纷的焦点问题,股权究竟花落谁家也是令股东们头疼的事情,这往往涉及到股东资格的认定问题。股权变动中的股东资格认定是我国近年来与公司相关的众多法律疑难中棘手的问题之一。分析其原因主要有:一是有一些公司在设立和运营过程中总是与法律法规的规定背道而驰。例如不设置股东名册、不进行工商登记等问题。二是我国公司立法还不够完善。纵使新《公司法》及相关司法解释已经做了大量修正和补充,仍是相对较粗泛,没有一以用之的标准。三是理论研究多与制度层面相关,体系性不够明确,学界的研究不够深入,尚未形成科学完备成熟的理论体系。这些都会导致类似的案件其判决理由、结果却差别甚大,损害了司法权威性及统一性。深入研究股权变动中的股东资格认定,有助于我们了解现存立法中对于此方面规定的不完善之处,加以探讨以求解决之,这是更有意义的本质性问题。除导言部分外,本文一共分为以下三个部分:第一部分是股权变动与股东资格认定的争议,概括了股东资格与股权的概念,了解其内涵是整个论文的基石;明确股东资格与股权的关系对下文认定股东资格意义重大;阐述认定股东资格的基本原则。第二部分开始分步骤的分析各个时间节点下的股东资格认定的法律效果。在股权转让协议生效、股东名册登记、工商变更登记、签发出资证明书这几个环节中,股权转让协议生效并履行即意味着股权发生了变动,原股东的股东资格已经被受让人取代,而后面的几个环节是股权变动对外发生效力的重要步骤。第三部分分析股权继承及分割情形下的股东资格认定。先就继承人之股东资格的获得进行提纲挈领式的论述,引出我国《公司法》第七十六条的规定,再分析不同情形下继承人在公司的不同法律地位,然后论述继承人在公司章程明确做出规定的情形下不能获得股权,且公司章程可以对继承人继承股权及行使股权做出限制。在这里也论述了继承股权的分割问题,同时分析股权分割情形下的股东资格认定,从夫妻离婚这种典型的案例讨论股权分割的条件和限制。
[Abstract]:The issue of equity is a common focus of corporate disputes, which is also a headache for shareholders, which often involves the qualification of shareholders. Shareholder qualification in stock rights change is one of the thorny problems in the legal problems related to companies in China in recent years. The main reasons are as follows: first, some companies always run contrary to laws and regulations in their establishment and operation. For example, do not set up a register of shareholders, no business registration and other issues. Second, our company legislation is not perfect enough. Even though the new Company Law and related judicial interpretations have made a large number of amendments and supplements, they are still relatively coarse and general, and there is no standard to be used. Third, the theoretical research is related to the system level, the systematicness is not clear enough, the academic circles research is not deep enough, has not formed the scientific complete mature theory system. These will lead to similar cases, but the result is very different, which damages the judicial authority and unity. It is helpful for us to understand the imperfections of the existing legislation on the qualification of shareholders in the course of stock right change, and to explore and solve it, which is a more meaningful and essential problem. In addition to the introduction, this paper is divided into the following three parts: the first part is the dispute between equity change and shareholder qualification, summarizes the concept of shareholder qualification and equity, understanding its connotation is the cornerstone of the whole paper; Clarifying the relationship between stockholder's qualification and stockholder's right is of great significance to confirm stockholder's qualification below; expound the basic principle of ascertaining shareholder's qualification. The second part begins to analyze the legal effect of shareholder qualification under each time node step by step. Among these links, such as the entry into force of the equity transfer agreement, the registration of the stockholders' register, the registration of industrial and commercial changes, and the issuance of a capital contribution certificate, the entry into force and performance of the equity transfer agreement means that the stock right has changed. The shareholder qualification of the original shareholder has been replaced by the transferee. The third part analyzes the shareholder qualification under the circumstances of equity succession and division. The article 76 of the Company Law of China is introduced, and then the different legal status of the heirs in the company under different circumstances is analyzed. Then, it is discussed that heirs can not acquire equity under the condition that the articles of association stipulate clearly, and the articles of association can restrict the inheritance and exercise of shares. At the same time, the paper analyzes the qualification of shareholders in the case of equity segmentation, and discusses the conditions and limitations of equity segmentation from the typical case of divorce of husband and wife.
【学位授予单位】：天津商业大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91
本文编号：2352622
[Abstract]:The issue of equity is a common focus of corporate disputes, which is also a headache for shareholders, which often involves the qualification of shareholders. Shareholder qualification in stock rights change is one of the thorny problems in the legal problems related to companies in China in recent years. The main reasons are as follows: first, some companies always run contrary to laws and regulations in their establishment and operation. For example, do not set up a register of shareholders, no business registration and other issues. Second, our company legislation is not perfect enough. Even though the new Company Law and related judicial interpretations have made a large number of amendments and supplements, they are still relatively coarse and general, and there is no standard to be used. Third, the theoretical research is related to the system level, the systematicness is not clear enough, the academic circles research is not deep enough, has not formed the scientific complete mature theory system. These will lead to similar cases, but the result is very different, which damages the judicial authority and unity. It is helpful for us to understand the imperfections of the existing legislation on the qualification of shareholders in the course of stock right change, and to explore and solve it, which is a more meaningful and essential problem. In addition to the introduction, this paper is divided into the following three parts: the first part is the dispute between equity change and shareholder qualification, summarizes the concept of shareholder qualification and equity, understanding its connotation is the cornerstone of the whole paper; Clarifying the relationship between stockholder's qualification and stockholder's right is of great significance to confirm stockholder's qualification below; expound the basic principle of ascertaining shareholder's qualification. The second part begins to analyze the legal effect of shareholder qualification under each time node step by step. Among these links, such as the entry into force of the equity transfer agreement, the registration of the stockholders' register, the registration of industrial and commercial changes, and the issuance of a capital contribution certificate, the entry into force and performance of the equity transfer agreement means that the stock right has changed. The shareholder qualification of the original shareholder has been replaced by the transferee. The third part analyzes the shareholder qualification under the circumstances of equity succession and division. The article 76 of the Company Law of China is introduced, and then the different legal status of the heirs in the company under different circumstances is analyzed. Then, it is discussed that heirs can not acquire equity under the condition that the articles of association stipulate clearly, and the articles of association can restrict the inheritance and exercise of shares. At the same time, the paper analyzes the qualification of shareholders in the case of equity segmentation, and discusses the conditions and limitations of equity segmentation from the typical case of divorce of husband and wife.
【学位授予单位】：天津商业大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91
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