有限责任公司僵局的解决

发布时间：2018-06-08 22:05

本文选题：有限责任公司 + 公司僵局　；参考：《中国政法大学》2011年硕士论文

【摘要】：公司僵局是公司决策机构内部成员之间彼此冲突,就公司的经营中的重大事宜,不能依法形成总体意思表示的对立状况。由于它严重地影响着公司及股东的利益,所以必须加以解决。有限责任公司僵局(以下简称“僵局”)具有代表性。有限责任公司的僵局,在内部是股东或者其支持的董事之间的权力斗争的胶着状态;与经营效果在理论上没有关联;并且股东或者董事行使权力导致僵局具有合法性特征。从矛盾发生的内部关系来看,僵局是“公司契约”的履行不能状态,契约的履行标的很特殊,是对初始协议在契约履行过程中的具体化;而从外部关系来看,僵局是拟制法人的意思机关无法形成团体意思的状态。僵局产生的原因,是人合性丧失后,公司成员内部矛盾失于解决的结果。人合性,在有限责任公司体现得很为明显,比如股东人数限制、资本募集限制、股东兼任董事、股权转让限制以及公司法规则的性质等,给这个公司类型带来了降低成本、提高运营效率、信息保密上的优势,同时,有限责任公司也为此承担着管理非专业化、监督渠道单一、股权流转不畅等劣势所带来的风险。一旦所发生的内部权力争端,公司自身不能解决时,外部的干预就不可避免了。在解决公司僵局问题上,两大法系各有自己的办法:大陆法系国家以德国有限责任公司法规定得细致,不仅仅有因僵局解散公司的做法,而且规定了邻近的开除、退出制度,为解决僵局做了外围上的准备;我国台湾地区的公司法对僵局解决规定得相当简单,其提起条件比较容易,但是,在法院判决时,却又设置了行政权力上的障碍。英美法系国家规定格外细致,外围上有遏制股东“压迫”、“排挤”的规定;解决途径上,调解、仲裁、司法都有运用;方案上,“指定接管人”、“指定临时股东”、“清购”、“解散公司”,力度上由弱到强,体系上有条不紊。对于我国未来公司法对僵局的破解措施,笔者认为,首先,应当总体上设计出信义原则,并由股东“压迫”解决制度具体落实;解决途径上,发挥仲裁、调解作用;具体方案上,临时股东指定、清购措施等都有借鉴价值。当然,公司发起人及其他成员,也应因地制宜完善公司章程,为预防僵局做好准备。
[Abstract]:Corporate deadlock is the conflict between the members of the decision-making organs of the company. It is impossible to form the opposite state of the expression of general intention in accordance with the law with regard to the major issues in the management of the company. Because it seriously affects the interests of the company and shareholders, it must be addressed. The deadlock of limited liability company (hereinafter referred to as "deadlock") is representative. The deadlock of limited liability company is the glue state of power struggle between shareholders or directors supported by it. And the deadlock caused by the exercise of power by shareholders or directors has the characteristics of legitimacy. Judging from the internal relations of contradictions, deadlock is the state of "corporate contract" performance, and the performance object of the contract is very special. It is the embodiment of the initial agreement in the process of contract implementation, and from the external relationship, deadlock is the state in which the meaning organ of the fictitious legal person cannot form the meaning of the group. The result of internal conflicts among the members of the company. The combination of people is evident in limited liability companies, such as restrictions on the number of shareholders, restrictions on capital raising, shareholders serving as directors, restrictions on the transfer of shares, and the nature of company law rules, which have brought about a reduction in costs for this type of company. At the same time, limited liability companies also bear the risk of non-professional management, single supervision channel, poor circulation of stock rights and so on. When there is an internal power dispute that cannot be resolved by the company itself, external intervention is inevitable. Each of the two major legal systems has its own method: the countries of the continental law system are carefully regulated by the German Limited liability Company Law, not only because of the practice of dissolving the company because of the deadlock, but also by providing for the nearby dismissal and withdrawal system. In order to resolve the deadlock, preparations were made on the periphery; the company law of Taiwan region of our country provided for the settlement of the deadlock quite simply, and the conditions for bringing it up were relatively easy. However, when the court decided that, But they also set up obstacles to administrative power. In common law countries, the regulations are particularly detailed, and there are provisions on the periphery to contain the "oppression" and "exclusion" of shareholders; on the means of settlement, mediation, arbitration, and judicature are all used; and on the scheme, "appointed receiver", "designated temporary shareholder", "clear purchase", "dissolve company", from weak to strong, systemically methodical. As for the measures to break the deadlock in the future company law of our country, the author thinks, first of all, The principle of fiduciary principle should be designed as a whole, and the settlement system of "oppression" by shareholders should be put into practice; in the way of settlement, the role of arbitration and mediation should be brought into play; in the concrete scheme, the appointment of temporary shareholders and the measures of clearing up purchases should be used for reference. Of course, company sponsors and other members should also adapt to improve the articles of association, ready to prevent deadlock.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91

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