有限公司股权继承法律问题研究
发布时间:2018-07-24 18:30
【摘要】: 有限公司的股权继承问题一直是各国公司法理论及实践中一个备受争议的问题,我国2005年新修订后的《公司法》第七十六条首次规定,自然人股东死亡后,其合法继承人可以继承股东资格,但是公司章程另有规定的除外。这一条款基本终结了我国学理界与实务界关于股东资格能否继承的大讨论。虽然我国现行公司法对有限责任公司股权继承作了规定,但是立法比较粗糙,细节问题和相关程序没有进一步的立法考虑。为保护继承人的权益,确保股权继承顺利完成,本文将采用实证研究、比较分析等研究方法,从抽象到具体、从理论到实践,逐步分析有限公司股权继承过程中存在的诸多问题,努力寻求解决有限公司股权继承问题的方案。 全文除引言外,共分三个部分。 第一部分,有限公司股权继承规定评析。本部分通过对我国股权继承立法历史进行考察,发现我国直到2005年才以立法的形式承认股东资格可以继承,明确了我国股权继承立法现状。同时,借鉴国外股权继承的立法规定,对比我国股权继承规定,提出存在的问题,包括:第一,股东资格与股权的关系不明确。现行《公司法》第76条中用的是继承股东资格的字眼,而不是继承股权的字眼,因而没有回答股权能否继承、继承股东资格和继承股权的区别和联系问题。第二,缺乏继承人能否放弃继承股东资格,而要求继承股权对应的财产的规定。第三,没有规定股东资格继承与公司形态变化之间的关系。第四,没有规定因继承取得的股东资格的取得时间。第五,没有解决特殊主体继承股东资格以及特殊股权的继承问题。特殊主体,主要是指胎儿、无民事行为能力人、限制民事行为能力人股东资格继承问题。特殊股权主要是指出资不实股东、挂名股东、隐名股东、干股股东、被吊销企业法人营业执照的公司的股东的股权。 第二部分,有限公司股权继承的基本理论。本部分从分析股权、股东资格的概念,确定股权、有限公司的性质着手,在此基础上研究股权作为继承客体的适格性、人合性与股权继承的关系。本文认为,股权具有财产属性和可移转性,从而使股权可以成为继承的客体;而有限公司的人合性尚未强大到能够阻止股权作为继承权客体的程度,因此,股权具有作为继承权客体的适格性。 第三部分,有限公司股权继承中的实务问题。针对公司法76条的规定,本文归纳出三大类问题分别分析解决:第一,公司章程没有约定股权继承条款;第二,公司章程中明确约定股权继承条款;第三,受遗赠人取得股东资格的问题。在分析三大类问题的前提下,又分析解决了四种特殊问题:第一,特殊主体继承股权问题,包括胎儿、无民事行为能力人、限制民事行为能力人三类特殊主体;第二,特殊股权的继承问题,包括出资不实股东的股权、隐名股东的股权、干股股东的股权、被吊销营业执照的公司股权;第三,因股权继承产生的一人有限公司问题;第四,无人继承的股权问题。最后对股权继承的程序和继承引发的僵局提出了解决办法。
[Abstract]:The issue of equity succession in a limited company has always been a controversial issue in the theory and practice of corporate law in various countries. The seventy-sixth article of the company law, which was revised in 2005, provides for the first time that after the death of the shareholders of a natural person, its legal successor may inherit the shareholder's qualification, except as otherwise stipulated in the articles of association. This clause is basically the end of the article. Although the current company law of our country has made a provision on the inheritance of shares in the limited liability company, the legislation is relatively rough, the details and related procedures have no further legislative consideration. In order to protect the rights and interests of the successors and ensure the successful completion of the inheritance, this article is to ensure the successful completion of the stock right inheritance. We will use empirical research, comparative analysis and other research methods, from abstract to concrete, from theory to practice, to gradually analyze the problems existing in the process of stock right inheritance in limited companies, and try to seek solutions to the problem of equity succession in limited companies.
In addition to the introduction, the full text is divided into three parts.
The first part is a review of the provisions of the stock right inheritance of limited company. Through the investigation of the history of our country's equity succession legislation, it is found that our country did not admit that the shareholder's qualification can be inherited until 2005 in the form of legislation. The existing problems include: first, the relationship between shareholders' qualification and equity is not clear. The current "Company Law >" is used in the seventy-sixth article to inherit the shareholders' qualifications, not to inherit the equity, and therefore does not answer the question whether the equity is inherited, the shareholder's qualification and the successor share are distinguished and connected. Second, the lack of heirs Whether or not to give up the qualification of the successor shareholders, and the requirement to inherit the corresponding property of the equity. Third, there is no relation between the inheritance of the shareholder's qualification and the change of the company's form. Fourth, there is no time for the acquisition of the shareholders' qualification obtained by inheritance. Fifth, there is no settlement of the inheritance of the special subjects and the inheritance of special shares. Special subject, mainly refers to the fetus, without the capacity of civil conduct, to limit the issue of the qualification of the shareholders of civil capacity. The special equity mainly refers to the shares of the shareholders of the company, which are the shareholders, the names of the shareholders, the invisible shareholders, the shareholders, and the business license of the corporate legal person.
The second part, the basic theory of the stock right inheritance of limited company. This part is based on the analysis of the equity, the concept of shareholder qualification, the determination of the equity and the nature of the limited company. On this basis, the paper studies the relationship between the right of equity as the object of inheritance, the relationship between human ownership and the inheritance of equity. Right can be the object of inheritance, and the joint nature of the limited company has not been strong enough to be able to prevent the equity as the object of inheritance. Therefore, the equity has the adaptability as the object of inheritance.
The third part, the practical problems in the stock inheritance of limited company. In view of the 76 articles of the company law, this article sums up three major categories of problems to be analyzed and solved respectively: first, the company's constitution does not stipulate the succession clause of the stock rights; second, the company Zhang Chengzhong clearly stipulates the equity succession clause; third, the legates obtain the shareholders' qualification. On the premise of three major problems, four special problems are analyzed and solved: first, the inheritance of stock rights of the special subject, including the fetus, the person without civil capacity, and the three special subjects of the person with limited capacity for civil behavior; second, the inheritance of special shares, including the equity of the shareholders, the shares of the invisible shareholders, the shareholders of the invisible shareholders, and the shareholders of the shareholders Stock right, the share of the company that is revoked the business license; third, the one person limited company problem caused by the stock right inheritance; fourth, the problem of the uninherited stock right. Finally, it puts forward the solution to the procedure of inheritance and the impasse caused by inheritance.
【学位授予单位】:郑州大学
【学位级别】:硕士
【学位授予年份】:2010
【分类号】:D922.291.91
本文编号:2142273
[Abstract]:The issue of equity succession in a limited company has always been a controversial issue in the theory and practice of corporate law in various countries. The seventy-sixth article of the company law, which was revised in 2005, provides for the first time that after the death of the shareholders of a natural person, its legal successor may inherit the shareholder's qualification, except as otherwise stipulated in the articles of association. This clause is basically the end of the article. Although the current company law of our country has made a provision on the inheritance of shares in the limited liability company, the legislation is relatively rough, the details and related procedures have no further legislative consideration. In order to protect the rights and interests of the successors and ensure the successful completion of the inheritance, this article is to ensure the successful completion of the stock right inheritance. We will use empirical research, comparative analysis and other research methods, from abstract to concrete, from theory to practice, to gradually analyze the problems existing in the process of stock right inheritance in limited companies, and try to seek solutions to the problem of equity succession in limited companies.
In addition to the introduction, the full text is divided into three parts.
The first part is a review of the provisions of the stock right inheritance of limited company. Through the investigation of the history of our country's equity succession legislation, it is found that our country did not admit that the shareholder's qualification can be inherited until 2005 in the form of legislation. The existing problems include: first, the relationship between shareholders' qualification and equity is not clear. The current "Company Law >" is used in the seventy-sixth article to inherit the shareholders' qualifications, not to inherit the equity, and therefore does not answer the question whether the equity is inherited, the shareholder's qualification and the successor share are distinguished and connected. Second, the lack of heirs Whether or not to give up the qualification of the successor shareholders, and the requirement to inherit the corresponding property of the equity. Third, there is no relation between the inheritance of the shareholder's qualification and the change of the company's form. Fourth, there is no time for the acquisition of the shareholders' qualification obtained by inheritance. Fifth, there is no settlement of the inheritance of the special subjects and the inheritance of special shares. Special subject, mainly refers to the fetus, without the capacity of civil conduct, to limit the issue of the qualification of the shareholders of civil capacity. The special equity mainly refers to the shares of the shareholders of the company, which are the shareholders, the names of the shareholders, the invisible shareholders, the shareholders, and the business license of the corporate legal person.
The second part, the basic theory of the stock right inheritance of limited company. This part is based on the analysis of the equity, the concept of shareholder qualification, the determination of the equity and the nature of the limited company. On this basis, the paper studies the relationship between the right of equity as the object of inheritance, the relationship between human ownership and the inheritance of equity. Right can be the object of inheritance, and the joint nature of the limited company has not been strong enough to be able to prevent the equity as the object of inheritance. Therefore, the equity has the adaptability as the object of inheritance.
The third part, the practical problems in the stock inheritance of limited company. In view of the 76 articles of the company law, this article sums up three major categories of problems to be analyzed and solved respectively: first, the company's constitution does not stipulate the succession clause of the stock rights; second, the company Zhang Chengzhong clearly stipulates the equity succession clause; third, the legates obtain the shareholders' qualification. On the premise of three major problems, four special problems are analyzed and solved: first, the inheritance of stock rights of the special subject, including the fetus, the person without civil capacity, and the three special subjects of the person with limited capacity for civil behavior; second, the inheritance of special shares, including the equity of the shareholders, the shares of the invisible shareholders, the shareholders of the invisible shareholders, and the shareholders of the shareholders Stock right, the share of the company that is revoked the business license; third, the one person limited company problem caused by the stock right inheritance; fourth, the problem of the uninherited stock right. Finally, it puts forward the solution to the procedure of inheritance and the impasse caused by inheritance.
【学位授予单位】:郑州大学
【学位级别】:硕士
【学位授予年份】:2010
【分类号】:D922.291.91
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