出资瑕疵股权转让法律问题研究

发布时间：2018-03-01 19:32

本文关键词： 出资瑕疵股权转让合同效力责任承担　出处：《山东大学》2013年硕士论文　论文类型：学位论文

【摘要】：按期足额的履行出资义务,是股东最基本的法定义务,然而随着当今社会经济的快速发展,越来越多的出资者为了实现自身利益最大化,在履行出资义务时往往不符合法律规定或者公司章程的规定。这种出资瑕疵的行为将会导致大量出资瑕疵股权的产生,因此由出资瑕疵股权转让所引发的出资瑕疵股权转让合同效力问题以及出资瑕疵股权转让后的责任承担问题也相伴而生。虽然《公司法》以及新出台的《公司法司法解释三》对出资瑕疵股权转让的相关法律问题已有所规定,理论界和司法实务界也都对此问题有所研究,但尚不足以令人信服,在法院审判活动中遇到此类问题时仍然多有矛盾,其裁判依据、裁判标准和裁判结果有时大相径庭。本文拟通过对《公司法》、《合同法》和相关司法解释的深入研究,以及对国外相关立法的比较分析,并结合国内外学者的相关理论学说及民商法的相关原理,仅从有限责任公司角度来全面深入的探讨出资瑕疵股权转让的相关法律问题。本文主要分为以下四个部分：一、出资瑕疵股权的界定。该部分简要阐述了出资瑕疵股权的概念以及出资瑕疵股权的基本类型的划分。笔者根据理论界不同学者的观点,认为出资瑕疵股主要包括两大基本类型即不履行出资义务的瑕疵股权和不适当履行出资义务的瑕疵股权。二、出资瑕疵股权的可转让性分析。该部分主要阐述了出资瑕疵股东资格认定问题以及出资瑕疵股东的权利行使问题,通过这两个问题的分析,可以得出出资瑕疵的股东仍然具有一定的股东资格,并且该出资瑕疵的股东可以自由行使股权转让权,因此出资瑕疵的股权仍然具有可转让性。三、出资瑕疵股权转让合同效力分析。该部分是本论文的第一个重点,主要介绍和分析了理论界和司法实务界对于出资瑕疵股权转让合同效力的几种学说,包括绝对无效说、绝对有效说、折中说和区分对待说。笔者通过对上述学说的全面分析,认为在出资瑕疵股权转让合同效力上,区分对待说即可撤销说更具有合理性。四、出资瑕疵股权转让后出资瑕疵责任的承担。该部分是本论文的第二个重点,笔者结合国内外相关立法以及国内外学者的相关学说,主要分析和探讨了出资瑕疵股权转让后的出资瑕疵责任承担的相关内容,包括责任承担的主体,责任承担的主要形式以及责任承担的范围等,这也是司法实务界的重点和难点问题。
[Abstract]:It is the most basic legal obligation for shareholders to fulfill their investment obligation in full and on time. However, with the rapid development of society and economy, more and more investors are trying to maximize their own interests. When performing the obligation of capital contribution, it is often not in accordance with the provisions of the law or the articles of association of the company. This behavior of defective capital contribution will lead to the emergence of a large number of defective shares in capital contribution. Therefore, the problem of the validity of the transfer contract and the responsibility after the transfer of the defective share of capital are accompanied by the transfer of the defective equity. Although the Company Law and the new Company Law have come into being, the problem of the contract effectiveness of the transfer of the defective equity of the capital contribution is also accompanied. Judicial interpretation 3 > the legal issues related to the transfer of defective shares in capital contribution have been stipulated. Both the theorists and the judicial practitioners have studied this issue, but it is not convincing enough. There are still many contradictions in the trial activities of the courts. The standard of adjudication and the result of adjudication are sometimes quite different. This paper intends to make a thorough study of Company Law, contract Law and related judicial interpretations, as well as a comparative analysis of relevant foreign legislation. Combined with the relevant theories of scholars at home and abroad and the relevant principles of civil and commercial law, only from the perspective of limited liability companies to fully explore the legal issues related to the transfer of defective shares in capital contribution. This paper is divided into the following four parts:. First, the definition of defective equity in capital contribution. This part briefly expounds the concept of defective equity in capital contribution and the classification of basic types of defective equity in capital contribution. It is considered that the defective shares mainly include two basic types, that is, defective shares which do not perform the obligation of capital contribution and defective shares which do not properly perform the obligation of contribution. Second, the transferability analysis of defective equity in capital contribution. This part mainly expounds the qualification of shareholders with defective capital contribution and the exercise of the rights of shareholders with defective capital contribution, through the analysis of these two problems, It can be concluded that the shareholders with defective capital contribution still have a certain qualification of shareholders, and the shareholders of the defect of capital contribution can freely exercise the right of equity transfer, so the equity of defective capital contribution is still transferable. This part is the first focus of this paper. It mainly introduces and analyzes several theories about the validity of the contract, including absolute invalidity, in theory and judicial practice. Based on the comprehensive analysis of the above theories, the author thinks that it is more reasonable to say that the theory of rescission is more reasonable in terms of the validity of the contract for the transfer of defective shares in capital contribution. This part is the second focus of this paper, the author combines the relevant legislation at home and abroad as well as the relevant theories of scholars at home and abroad. This paper mainly analyzes and discusses the relevant contents of the liability for the defect of capital contribution after the transfer of the defective equity, including the main body, the main forms and the scope of the responsibility, etc. This is also the focus of judicial practice and difficult problems.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.291.91;D923.6

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