公司控制权转让中控制股东的义务研究
发布时间：2018-07-29 20:46
【摘要】：我国存在大量公司控制权转让交易,控制股东在交易中为使自身利益最大化而滥用控制权导致公司和中小股东利益受损的现象频频发生,但我国还缺少与公司控制权转让相配套的法律制度。本文针对我国控制股东在转让公司控制权时滥用控制权的现状,通过比较目前各国和地区相关判例及立法,对我国控制股东转让公司控制权时承担义务的法理基础、合理性进行分析,尝试构建我国控制股东转让公司控制权时承担的具体义务,并提出相关立法建议。 本文分为引言、正文和结论三个部分,其中,正文部分共分为五章: 第一章主要对“公司控制权”、“控制股东”、“公司控制权转让”等基本概念进行法律层面的界定,明确本文的研究范围。 第二章侧重通过经济数据和研究资料揭示控制股东在公司控制权转让交易中滥用控制权的现状及其危害,分析其原因,为平衡控制股东与公司、中小股东的利益冲突寻找可行的解决方法。 1本文所研究的“公司控制权”,是指通过行使投票权、表决权或控制公司董事会,得以对公司所有可供支配和利用的资源施加控制和管理的权力。 “控制股东”,简单得说就是事实上掌握公司控制权的股东,具体是指通过各种手段,如资本控制、人事连锁、关联控制等实际掌握公司控制权的股东,一般以股东对于公司的决策和经营上的支配或控制力作为关键性认定标准。但控制股东并不是一个固定的身份,在不同的时期和场合,即便同一个公司的控制股东范围也会出现动态变化。控制股东也不同于我国《公司法》中的“控股股东”,控股股东并没有涵盖对公司的董事会决议拥有控制权的股东以及虽然没有任何表决权但通过支配公司的董事会成员间接控制公司的控制股东,而这类股东滥用控制权的现象并不少见。因此,从某种意义上说,控制股东是控股股东的上位概念,从控制股东取得控制权的方式上也可以将控制股东分为控股的控制股东(即控股股东)和非控股的控制股东。应当说控制股东是一个更为灵活的概念,有利于对实践中滥用控制权的股东进行有效规制,而不必受制于股东持股比例的标准。 “公司控制权转让”,是控制股东通过股份转让、资产转让、信托以及协议安排等多种途径,将其所持有的公司控制权有偿转让给受让人,使后者取得公司控制权而成为公司新控制股东的行为。实践当中存在很多种控制权转让形式:代理权征集、并购、信托、订立控制协议、资产重组或置换、转让公司控制股份等等。判断具体交易是否属于控制权转让交易,关键在于交易完成以后是否导致了控制权掌控者的变更。就通过转让股份完成公司控制权转让的交易类型来看,无论是转让全部还是部分股份,仅当股份出售一方的控制股东因为股份的转让丧失公司控制权,同时产生新的控制股东时,才属于公司控制权转让。如果控制股东转让股份以后自己仍然能够在具体交易中行使公司控制权,就不属于公司控制权转让。因此,须结合具体交易情形判断该交易是否属于控制权转让。 本文主要研究控制股份转让导致公司控制权转让的交易类型。根据控制股东主观状态的不同,可以将控制权转让区分为善意控制权转让和恶意控制权转让,本文研究的主要是恶意控制权转让。在控制权转让交易中,同时涉及出售控制权的原控制股东和受让控制权的新控制股东,本文仅研究作为出售方的控制股东。 第三章从法理上论证了控制股东对公司和中小股东承担义务的理论基础,对在公司控制权转让交易中课以控制股东义务进而规制控制股东恶意转让公司控制权的合理性进行了分析。 第四章着重介绍控制股东在公司控制权转让交易中承担的注意义务和忠实义务,具体体现为合理调查义务、信息披露义务和控制权溢价分享义务,疏理国内外有关上述三项义务的研究成果,尝试构建我国公司控制权转让交易中控制股东的义务体系。 第五章分析我国有关公司控制权转让时控制股东义务的法律法规及其不足,对完善我国公司控制权转让交易中控制股东义务制度提出初步建议。
[Abstract]:There are a large number of transfer transactions of corporate control in our country. The phenomenon that controlling shareholders' abuse of control in order to maximize their own interests leads to the loss of the interests of the company and the small and medium shareholders frequently. However, there is a lack of legal system matching the transfer of corporate control in our country. By comparing the current situation of control right, by comparing the relevant jurisprudence and legislation in various countries and regions, this paper analyzes the legal basis and rationality of our country's controlling shareholders to transfer the control power of the company, tries to construct the specific obligations of controlling shareholders to transfer the control of the company, and puts forward relevant legislative proposals.
This article is divided into three parts: introduction, text and conclusion. The body part is divided into five chapters.
The first chapter defines the basic concepts of "corporate control", "controlling shareholders", "transfer of corporate control" and other basic concepts, to clarify the scope of this study.
The second chapter focuses on the economic data and research data to reveal the current situation and harm of the control shareholders abusing the control rights in the transfer transaction of the company's control rights, and analyses the reasons for the purpose of finding a feasible solution to control the interests conflict between the shareholders and the company and the small and medium shareholders.
1 the "right of corporate control" in this article refers to the power to control and manage all the resources that can be controlled and utilized by the company by exercising the right to vote, the right to vote or the control of the board of directors of the company.
"Controlling shareholders" is simply to say that the shareholders who have mastered the control of the company in fact refer to the shareholders who actually master the control of the company through various means, such as capital control, personnel chain, related control and so on. Generally, the control shares are the key criteria for the decision and management of the company, but the control stock is the control stock. The East is not a fixed identity. In different periods and occasions, even the control shareholders of the same company will change dynamically. The controlling shareholders are different from the "controlling shareholders" in the company law of China. The controlling shareholders do not cover the shareholders with the control of the company's board of directors, as well as not any of them. The right to vote is indirectly controlled by the members of the board of directors who dominate the company, and the phenomenon of the abuse of control is not uncommon. Therefore, in a sense, the controlling shareholders are the superordinate concept of the controlling shareholders, and the control shareholders can be divided into controlling shareholders in the way of controlling shareholders' control rights. The controlling shareholder (i.e. the controlling shareholder) and the non controlling shareholder should be said that the controlling shareholder is a more flexible concept, which is beneficial to the effective regulation of the shareholders who abused the control right in practice, without being subject to the standard of the proportion of shareholders' shareholding.
The transfer of the right of control of the company is the act of controlling the shareholders' transfer of the right of control of the company to the transferee through the transfer of shares, the transfer of assets, the trust and the arrangement of the agreement, which makes the latter obtain the control of the company and become the new controlling shareholder of the company. In practice, there are many forms of transfer of control rights: agent Rights collection, merger, trust, conclusion of control agreement, asset reorganization or replacement, transfer of company control shares and so on. Determine whether the specific transaction belongs to the control transfer transaction, the key lies in whether the transaction has led to the control of the control of the change after the completion of the transaction, the transfer of shares through the transfer of the type of transaction, regardless of the type of transfer of the company's control. Is the transfer of all or part of the share, only when the controlling shareholder of the stock selling party loses the control of the company because of the transfer of the shares, and produces the new control shareholder, which belongs to the transfer of the right of control of the company. If the controlling shareholder is still able to exercise the control of the company in the specific exchange, it is not under the control of the company. Transfer of rights. Therefore, it is necessary to determine whether the transaction is a transfer of control in connection with specific transaction situations.
This paper mainly studies the types of transactions that control the transfer of the control rights of the company. According to the different subjective state of the controlling shareholders, the transfer of control rights can be divided into the transfer of good faith control and the transfer of malicious control. This paper mainly studies the transfer of the right of malicious control. In the transfer transaction of control rights, it also involves the control of sale. The new controlling shareholder of the original controlling shareholder and the transferee control right is only studied as the controlling shareholder of the selling party.
The third chapter expounds the theoretical basis of the legal theory of controlling shareholders' obligations to the company and the small and medium shareholders, and analyzes the reasonableness of controlling shareholders' obligations in the transfer of the company's control rights and controlling shareholders' malicious transfer of the company's control rights.
The fourth chapter emphatically introduces the duty of attention and the duty of loyalty of the controlling shareholders in the transfer of the right of control of the company. It embodies the obligation of reasonable investigation, the obligation of information disclosure and the obligation of sharing control over the premium, and tries to construct the control stock in the transfer transaction of our company's control right by dredging the research results of the three obligations above and at home and abroad. A system of obligations in the East.
The fifth chapter analyzes the laws and regulations of controlling shareholders' obligations under the transfer of the right of control of the company in our country and its shortcomings, and puts forward some preliminary suggestions on improving the system of controlling shareholders' obligation in the transfer transaction of the company's control right in our country.
【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
本文编号：2153964
[Abstract]:There are a large number of transfer transactions of corporate control in our country. The phenomenon that controlling shareholders' abuse of control in order to maximize their own interests leads to the loss of the interests of the company and the small and medium shareholders frequently. However, there is a lack of legal system matching the transfer of corporate control in our country. By comparing the current situation of control right, by comparing the relevant jurisprudence and legislation in various countries and regions, this paper analyzes the legal basis and rationality of our country's controlling shareholders to transfer the control power of the company, tries to construct the specific obligations of controlling shareholders to transfer the control of the company, and puts forward relevant legislative proposals.
This article is divided into three parts: introduction, text and conclusion. The body part is divided into five chapters.
The first chapter defines the basic concepts of "corporate control", "controlling shareholders", "transfer of corporate control" and other basic concepts, to clarify the scope of this study.
The second chapter focuses on the economic data and research data to reveal the current situation and harm of the control shareholders abusing the control rights in the transfer transaction of the company's control rights, and analyses the reasons for the purpose of finding a feasible solution to control the interests conflict between the shareholders and the company and the small and medium shareholders.
1 the "right of corporate control" in this article refers to the power to control and manage all the resources that can be controlled and utilized by the company by exercising the right to vote, the right to vote or the control of the board of directors of the company.
"Controlling shareholders" is simply to say that the shareholders who have mastered the control of the company in fact refer to the shareholders who actually master the control of the company through various means, such as capital control, personnel chain, related control and so on. Generally, the control shares are the key criteria for the decision and management of the company, but the control stock is the control stock. The East is not a fixed identity. In different periods and occasions, even the control shareholders of the same company will change dynamically. The controlling shareholders are different from the "controlling shareholders" in the company law of China. The controlling shareholders do not cover the shareholders with the control of the company's board of directors, as well as not any of them. The right to vote is indirectly controlled by the members of the board of directors who dominate the company, and the phenomenon of the abuse of control is not uncommon. Therefore, in a sense, the controlling shareholders are the superordinate concept of the controlling shareholders, and the control shareholders can be divided into controlling shareholders in the way of controlling shareholders' control rights. The controlling shareholder (i.e. the controlling shareholder) and the non controlling shareholder should be said that the controlling shareholder is a more flexible concept, which is beneficial to the effective regulation of the shareholders who abused the control right in practice, without being subject to the standard of the proportion of shareholders' shareholding.
The transfer of the right of control of the company is the act of controlling the shareholders' transfer of the right of control of the company to the transferee through the transfer of shares, the transfer of assets, the trust and the arrangement of the agreement, which makes the latter obtain the control of the company and become the new controlling shareholder of the company. In practice, there are many forms of transfer of control rights: agent Rights collection, merger, trust, conclusion of control agreement, asset reorganization or replacement, transfer of company control shares and so on. Determine whether the specific transaction belongs to the control transfer transaction, the key lies in whether the transaction has led to the control of the control of the change after the completion of the transaction, the transfer of shares through the transfer of the type of transaction, regardless of the type of transfer of the company's control. Is the transfer of all or part of the share, only when the controlling shareholder of the stock selling party loses the control of the company because of the transfer of the shares, and produces the new control shareholder, which belongs to the transfer of the right of control of the company. If the controlling shareholder is still able to exercise the control of the company in the specific exchange, it is not under the control of the company. Transfer of rights. Therefore, it is necessary to determine whether the transaction is a transfer of control in connection with specific transaction situations.
This paper mainly studies the types of transactions that control the transfer of the control rights of the company. According to the different subjective state of the controlling shareholders, the transfer of control rights can be divided into the transfer of good faith control and the transfer of malicious control. This paper mainly studies the transfer of the right of malicious control. In the transfer transaction of control rights, it also involves the control of sale. The new controlling shareholder of the original controlling shareholder and the transferee control right is only studied as the controlling shareholder of the selling party.
The third chapter expounds the theoretical basis of the legal theory of controlling shareholders' obligations to the company and the small and medium shareholders, and analyzes the reasonableness of controlling shareholders' obligations in the transfer of the company's control rights and controlling shareholders' malicious transfer of the company's control rights.
The fourth chapter emphatically introduces the duty of attention and the duty of loyalty of the controlling shareholders in the transfer of the right of control of the company. It embodies the obligation of reasonable investigation, the obligation of information disclosure and the obligation of sharing control over the premium, and tries to construct the control stock in the transfer transaction of our company's control right by dredging the research results of the three obligations above and at home and abroad. A system of obligations in the East.
The fifth chapter analyzes the laws and regulations of controlling shareholders' obligations under the transfer of the right of control of the company in our country and its shortcomings, and puts forward some preliminary suggestions on improving the system of controlling shareholders' obligation in the transfer transaction of the company's control right in our country.
【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
【引证文献】
相关硕士学位论文 前1条
1 李新;论控制股东滥权行为的法律规制[D];河北经贸大学;2012年
，本文编号：2153964
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