公司实物出资研究
发布时间：2018-07-26 19:00
【摘要】：公司资本是公司成立的基本条件，也是公司成立后进行经营活动和对外承当责任的物资保障和基础,公司资本对于公司的意义不言而明。股东的出资构成公司资本，其出资的形式和出资的履行对于公司资本的构成等具有重要作用。实物出资作为公司法规定的一种出资形式，其与货币出资是并列的独立的出资方式，并不是代替货币出资的代物清偿，也不是货币出资的抵缴。随着我国市场经济发展，实物出资被广泛的应用，参与到公司的设立和经营过程中，在整个公司资本制度中其重要性日益突显，它一方面能提高社会资源的利用率，优化资源配置，同时也促进了投资，便利了公司的设立，节约公司的设立成本。另外实物出资还关系到股东之间权益的分配，对公司及债权人的利益都有重大的影响。实物出资对于促进公司发展和对社会经济发展具有重大意义。 本文分为四部分。首先从实物出资的概念出发，指出实物出资就是以民法上的物出资，分析实物出资与货币出资的不同点，对实物的理论特性进行探讨，得出其应当满足确定性、现存的价值性、可评价性、可转让性四个要件，而有益性不应当成为其构成要件，说明实物出资体现效率、安全、自由的法律价值。其次参考他国的法律制度，得出我国的评估模式由评估机构对实物出资进行评估，然后对评估后的公示和审查进行分析，介绍我国现行的验资制度及其缺陷。再次对实物出资瑕疵情形进行分类，在此基础上确定瑕疵出资的股东应承担的责任，瑕疵出资的股东应当对公司、足额出资的公司股东和公司债权人承担责任。最后提出对我国实物出资相关制度的完善，对评估验资制度的完善和加强瑕疵出资股东的责任两方面进行，对评估主体采取更为灵活的选择，对公示和审查程序进行完善，同时建议废止验资程序。在瑕疵出资的方面提出对失权制度和公司人格否认制度的完善，，使公司、足额出资公司股东和公司债权人的权益得到更好的保护。
[Abstract]:The company capital is the basic condition of the company's establishment, and it is also the material guarantee and foundation for the company to carry on the management activity and the external responsibility after the company's establishment, the company capital is not clear to the company's significance. Shareholders' contribution constitutes the company's capital, and the form and performance of its contribution play an important role in the composition of the company's capital. As a form of capital contribution stipulated in the Company Law, the in-kind contribution is an independent form of capital contribution in parallel with the monetary contribution, and it is not a substitute for the payment of the money contribution, nor is it the offset of the monetary contribution. With the development of the market economy in our country, the in-kind investment is widely used in the process of the establishment and operation of the company. It is increasingly important in the whole company's capital system. On the one hand, it can improve the utilization rate of social resources. Optimize the allocation of resources, but also promote investment, facilitate the establishment of the company, save the cost of the establishment of the company. In addition, the contribution in kind is related to the distribution of shareholders' rights and interests, and has a significant impact on the interests of the company and the creditors. The contribution in kind is of great significance to promote the development of the company and the development of social economy. This paper is divided into four parts. Firstly, starting from the concept of in-kind contribution, the author points out that the in-kind contribution is based on the material contribution in civil law, analyzes the difference between the in-kind contribution and the monetary contribution, discusses the theoretical characteristics of the physical object, and concludes that it should satisfy the certainty and the extant value. Evaluability, transferability are four elements, but the beneficial nature should not be its constituent element, which explains the legal value of efficiency, security and freedom of the contribution in kind. Secondly, referring to the legal system of other countries, the author draws the conclusion that the evaluation model of our country is assessed by the evaluation institution to the in-kind investment, and then analyzes the public announcement and examination after the evaluation, and introduces the current capital verification system of our country and its defects. On the basis of this, the shareholders of defective capital should bear the responsibility to the company, the shareholders of the company and the creditors of the company. Finally, the paper puts forward the improvement of the related system of in-kind investment in China, the perfection of the appraisal and verification system and the strengthening of the responsibility of the shareholders of defective capital contribution, the adoption of a more flexible choice for the evaluation subject, and the perfection of the publicity and examination procedures. At the same time, it is recommended that the verification procedure be abolished. In the aspect of defective capital contribution, the author puts forward the perfection of the system of loss of rights and the denial of corporate personality, so that the rights and interests of the shareholders and creditors of the company can be better protected.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.291.91
本文编号：2146986
[Abstract]:The company capital is the basic condition of the company's establishment, and it is also the material guarantee and foundation for the company to carry on the management activity and the external responsibility after the company's establishment, the company capital is not clear to the company's significance. Shareholders' contribution constitutes the company's capital, and the form and performance of its contribution play an important role in the composition of the company's capital. As a form of capital contribution stipulated in the Company Law, the in-kind contribution is an independent form of capital contribution in parallel with the monetary contribution, and it is not a substitute for the payment of the money contribution, nor is it the offset of the monetary contribution. With the development of the market economy in our country, the in-kind investment is widely used in the process of the establishment and operation of the company. It is increasingly important in the whole company's capital system. On the one hand, it can improve the utilization rate of social resources. Optimize the allocation of resources, but also promote investment, facilitate the establishment of the company, save the cost of the establishment of the company. In addition, the contribution in kind is related to the distribution of shareholders' rights and interests, and has a significant impact on the interests of the company and the creditors. The contribution in kind is of great significance to promote the development of the company and the development of social economy. This paper is divided into four parts. Firstly, starting from the concept of in-kind contribution, the author points out that the in-kind contribution is based on the material contribution in civil law, analyzes the difference between the in-kind contribution and the monetary contribution, discusses the theoretical characteristics of the physical object, and concludes that it should satisfy the certainty and the extant value. Evaluability, transferability are four elements, but the beneficial nature should not be its constituent element, which explains the legal value of efficiency, security and freedom of the contribution in kind. Secondly, referring to the legal system of other countries, the author draws the conclusion that the evaluation model of our country is assessed by the evaluation institution to the in-kind investment, and then analyzes the public announcement and examination after the evaluation, and introduces the current capital verification system of our country and its defects. On the basis of this, the shareholders of defective capital should bear the responsibility to the company, the shareholders of the company and the creditors of the company. Finally, the paper puts forward the improvement of the related system of in-kind investment in China, the perfection of the appraisal and verification system and the strengthening of the responsibility of the shareholders of defective capital contribution, the adoption of a more flexible choice for the evaluation subject, and the perfection of the publicity and examination procedures. At the same time, it is recommended that the verification procedure be abolished. In the aspect of defective capital contribution, the author puts forward the perfection of the system of loss of rights and the denial of corporate personality, so that the rights and interests of the shareholders and creditors of the company can be better protected.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.291.91
【参考文献】
相关期刊论文 前2条
1 莫初明;;论现物出资标的物的法律适格性[J];湖北经济学院学报(人文社会科学版);2007年05期
2 宋智慧;商法价值范畴论析[J];学术论坛;2005年04期
本文编号：2146986
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