有限责任公司股东虚假出资行为研究
发布时间：2018-07-17 01:10
【摘要】：改革开放以来,特别是近十几年以来,我国社会主义市场经济得到迅猛发展,市场经济环境日趋完善和成熟,我国逐步建立健全了现代企业制度(modem enterprise system),现代企业制度是指以市场经济为基础,以完善的企业法人制度为主体,以有限责任制度为核心,以公司企业为主要形式,以产权清晰、权责明确、政企分开、管理科学为条件的新型企业制度,其主要内容包括：企业法人制度、企业自负盈亏制度、出资者有限责任制度、科学的领导体制与组织管理制度。出资者有限责任制度是现代企业制度的重要组成部分,对于近现代公司的发展有着重要意义,它克服了无限责任公司股东负担的因公司破产而导致个人破产的风险,便于人们投资入股,是广泛筹集资金,快速调动和充分利用社会资源的有效手段。有限责任公司作为企业法人制度的典型组织形式,在市场经济中具有举足轻重的作用。出资者的有限责任是建立公司合法设立和正常运行的基础之上的,因此出资者在享受公司制所带来的有限责任种种益处的同时,必须担负起所应承担的出资义务,从而维护各方利益不受损害。而现实中投资人在出资过程中常常存在出资不到位的现象,严重破坏了正常的经营秩序和交易安全。据统计,我国公司资本到位率普遍较低,违反出资义务案件屡见不鲜,层出不穷,其中虚假出资和抽逃出资是最普遍的两种违法形式。此类违法行为容易引起连锁反应,威胁市场诚信,破坏经营秩序,阻碍经济发展,因此,我们有必要对公司设立过程中的出资问题进行研究,以规制违法行为,引导出资人遵纪守法,维护各方权益。本文的研究对象为有限责任公司股东的虚假出资问题。主要出于一下几个方面考虑：第一,有限责任公司占公司总数的90%,数量上远远多于股份有限公司,对经济发展起到基础性作用。另外我国法律法规对于股份有限公司规制相对完善,行政管理部门对其监管相对严格,股份有限公司投资人违反出资义务相对少见,相比之下有限责任公司出资人在出资过程中的违法行为更普遍,更严重。因此,笔者打算只对占比重较高、违法行为更普遍的有限责任公司的出资行为进行探讨；第二,由于一人有限公司和国有独资公司公司法中有特别规定,笔者在这里暂不做讨论,只研究一般意义上的有限责任公司；第三,违反出资义务的行为常见方式主要有虚假出资和抽逃出资两种,鉴于篇幅和精力的问题,笔者只研究虚假出资一种情况。本文采用的研究方法为文献法,以有限责任公司股东虚假出资问题为研究对象,通过对我国现有公司出资制度进行研究,阐述虚假出资行为的目的与危害,讨论虚假出资的责任分析和救济途径,最后提出有针对性的治理方式,为改善公司出资环境,维护市场经济秩序提供帮助。
[Abstract]:Since the reform and opening up, especially in the past ten years, China's socialist market economy has developed rapidly, and the market economy environment has become increasingly perfect and mature. Our country has gradually established and perfected the modern enterprise system (modem enterprise system), modern enterprise system refers to take the market economy as the foundation, take the perfect enterprise legal person system as the main body, take the limited liability system as the core, take the company enterprise as the main form, take the property right to be clear. The new enterprise system, which is characterized by clear power and responsibility, separation of government from enterprise, and scientific management, mainly includes: enterprise legal person system, enterprise self-responsibility for profit and loss system, investor limited liability system, scientific leadership system and organization management system. The investor limited liability system is an important part of the modern enterprise system, which is of great significance to the development of the modern company. It overcomes the risk of individual bankruptcy caused by the bankruptcy of the shareholders of the unlimited liability company. It is an effective means to raise funds widely, to mobilize and make full use of social resources. As a typical organizational form of corporate system, limited liability company plays an important role in market economy. The limited liability of the investor is based on the legal establishment and normal operation of the company. Therefore, while enjoying the benefits of limited liability brought by the corporate system, the investor must shoulder the obligation to contribute. So that the interests of all parties will not be harmed. In reality, investors often do not invest in the process of investment, seriously damaged the normal business order and transaction security. According to statistics, the corporate capital arrival rate is generally low in our country, and the cases of violating the obligation of capital contribution are common and emerge in endlessly. Among them, the false capital contribution and the withdrawal of capital contribution are the two most common illegal forms. This kind of illegal behavior is easy to cause chain reaction, threaten market integrity, destroy business order and hinder economic development. Therefore, it is necessary for us to study the issue of capital contribution in the process of establishing a company in order to regulate illegal behavior. To guide the investors to abide by the law and to safeguard the rights and interests of all parties. The object of this paper is the problem of false contribution of shareholders of limited liability company. First, limited liability companies account for 90% of the total number of companies, far more than the number of joint stock limited companies, play a fundamental role in economic development. In addition, China's laws and regulations are relatively perfect for joint stock limited companies, the administrative departments are relatively strict over them, and it is relatively rare for investors of joint stock limited companies to violate their investment obligations. In contrast, limited liability company investors in the process of funding more common, more serious. Therefore, the author intends to discuss the investment behavior of limited liability companies with higher proportion and more common illegal behavior. Secondly, due to the special provisions of one-person limited company and sole state-owned company law, The author does not discuss here for the time being, only studies the limited liability company in the general sense; third, the common ways of violating the obligation of contribution mainly include two kinds: false capital contribution and withdrawal of capital contribution, in view of the problem of space and energy. The author only studies a case of false capital contribution. The research method adopted in this paper is literature method, taking the problem of shareholders' false capital contribution of limited liability company as the research object, the purpose and harm of the false capital contribution behavior are expounded through the research on the existing investment system of the company in our country. This paper discusses the liability analysis and relief ways of false capital contribution, and finally puts forward some targeted governance methods to help improve the investment environment of the company and maintain the order of market economy.
【学位授予单位】：中国海洋大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：F276.6;F275
本文编号：2128364
[Abstract]:Since the reform and opening up, especially in the past ten years, China's socialist market economy has developed rapidly, and the market economy environment has become increasingly perfect and mature. Our country has gradually established and perfected the modern enterprise system (modem enterprise system), modern enterprise system refers to take the market economy as the foundation, take the perfect enterprise legal person system as the main body, take the limited liability system as the core, take the company enterprise as the main form, take the property right to be clear. The new enterprise system, which is characterized by clear power and responsibility, separation of government from enterprise, and scientific management, mainly includes: enterprise legal person system, enterprise self-responsibility for profit and loss system, investor limited liability system, scientific leadership system and organization management system. The investor limited liability system is an important part of the modern enterprise system, which is of great significance to the development of the modern company. It overcomes the risk of individual bankruptcy caused by the bankruptcy of the shareholders of the unlimited liability company. It is an effective means to raise funds widely, to mobilize and make full use of social resources. As a typical organizational form of corporate system, limited liability company plays an important role in market economy. The limited liability of the investor is based on the legal establishment and normal operation of the company. Therefore, while enjoying the benefits of limited liability brought by the corporate system, the investor must shoulder the obligation to contribute. So that the interests of all parties will not be harmed. In reality, investors often do not invest in the process of investment, seriously damaged the normal business order and transaction security. According to statistics, the corporate capital arrival rate is generally low in our country, and the cases of violating the obligation of capital contribution are common and emerge in endlessly. Among them, the false capital contribution and the withdrawal of capital contribution are the two most common illegal forms. This kind of illegal behavior is easy to cause chain reaction, threaten market integrity, destroy business order and hinder economic development. Therefore, it is necessary for us to study the issue of capital contribution in the process of establishing a company in order to regulate illegal behavior. To guide the investors to abide by the law and to safeguard the rights and interests of all parties. The object of this paper is the problem of false contribution of shareholders of limited liability company. First, limited liability companies account for 90% of the total number of companies, far more than the number of joint stock limited companies, play a fundamental role in economic development. In addition, China's laws and regulations are relatively perfect for joint stock limited companies, the administrative departments are relatively strict over them, and it is relatively rare for investors of joint stock limited companies to violate their investment obligations. In contrast, limited liability company investors in the process of funding more common, more serious. Therefore, the author intends to discuss the investment behavior of limited liability companies with higher proportion and more common illegal behavior. Secondly, due to the special provisions of one-person limited company and sole state-owned company law, The author does not discuss here for the time being, only studies the limited liability company in the general sense; third, the common ways of violating the obligation of contribution mainly include two kinds: false capital contribution and withdrawal of capital contribution, in view of the problem of space and energy. The author only studies a case of false capital contribution. The research method adopted in this paper is literature method, taking the problem of shareholders' false capital contribution of limited liability company as the research object, the purpose and harm of the false capital contribution behavior are expounded through the research on the existing investment system of the company in our country. This paper discusses the liability analysis and relief ways of false capital contribution, and finally puts forward some targeted governance methods to help improve the investment environment of the company and maintain the order of market economy.
【学位授予单位】：中国海洋大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：F276.6;F275
【参考文献】
相关期刊论文 前2条
1 胡小红;;论违反出资义务股东所应承担的民事责任[J];中国工商管理研究;2007年02期
2 王莉萍;债权人追究股东出资责任的法律问题[J];现代法学;2003年05期
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