浅析股东身份的认定
发布时间：2018-08-17 16:30
【摘要】：如何认定公司股东的身份,直接关系到投资人和公司之间的权利和义务关系。除了通常的股东身份确认诉讼之外,在其他的股东权运作中的多类纠纷案件当中,如何认定公司股东的身份也是一个亟待解决的重要难题。 本文认为,认定公司股东之身份,首先必须始终维护公司的相对稳定性、鼓励和保护投资者、注重保护公司外的善意第三人等原则的前提条件下,全面分析和把握行政登记部门、公司的章程、股东的名册、出资证明书等各种材料。同时根据公司法的相关法理,针对不同的案例,将确认公司股东身份的证据材料根据其不同性质加以区分和确认。 在关于股东资格的纠纷中,如果系内部纠纷,一般应当以当事人的真实意思表示为基础,以当事人是否实际出资为确认股东资格的主要判断标准,而不能仅仅依据行政登记等表面证据予以机械的应对。此外,当事人是否实际享受股东的权利,例如分红权和参与表决权,也是衡量股东资格的重要参照依据。在所谓的显名股东与隐名股东的股东身份认定纠纷当中,如果所谓的隐名股东与显名股东间仅仅只有秘密的合同约定,而公司的其他股东对所谓的隐名股东的身份不知情或未予以认同,则隐名股东不能认定为公司的股东。同时,对于未实际出资的股东,但在公司已经取得营业执照后,其股东身份一般应当得以认定。在附带与公司的劳动关系条件或者附带期限的股东资格纠纷中,只要这种附带条件不违背公司法的原则性规定,并不因此损害善意第三人的利益,则这种附带条件的股东资格应得到确认。当某人给公司的出资出现“名”不符“实”的情况时,则仍然应当从实质上认定或否定某人的股东资格。在名义上为借款形式,而实际是投资入股的案例中,一般可以认定其具有股东资格；相反,在名义上为投资入股,但实际上却为借贷关系的情形,一般可否认其为公司的股东。在有限公司中,因继承而取得股东资格时,如果公司章程或者股东会决议对继承人取得股东资格有限制,则该限制是有效的。但是这种限制不能就继承人对股权作为财产权的那部分继承权进行限制。在处理公司股东与公司第三人的纠纷时,尤其是在揭开公司面纱的案件当中,涉及股东资格的确认或否认时,应同样采纳重实质、轻外观的原则。 由于公司法在对外利益上秉承“重程序、重效率及安全”的理念,而在对内利益上遵循的是“重实质公平及诚实信用”的观念,因此,裁判者应结合不同案件的诉讼请求,针对上述证据材料在不同案件中不同程度的证明力,灵活运用证据材料。
[Abstract]:How to determine the identity of shareholders is directly related to the rights and obligations between investors and companies. In addition to the usual shareholder identification litigation, how to determine the identity of the shareholders is an important problem to be solved in many kinds of dispute cases in the operation of shareholders' rights. In this paper, we believe that in order to identify the shareholders of a company, we must always maintain the relative stability of the company, encourage and protect investors, and pay attention to the protection of bona fide third parties outside the company. Comprehensive analysis and grasp of the administrative registration department, the company's articles of association, shareholders' register, capital contribution certificate and other materials. At the same time, according to the relevant legal theory of the company law, according to the different cases, the evidence materials of confirming the identity of the shareholders of the company are distinguished and confirmed according to their different properties. In a dispute about shareholder qualification, if it is an internal dispute, it should generally be based on the expression of the true will of the parties, and whether the parties actually contribute is the main criterion for determining the qualification of shareholders. And can not only be based on administrative registration and other surface evidence to mechanical response. In addition, whether the parties actually enjoy the rights of shareholders, such as the right to dividends and participate in voting rights, is also an important reference to measure the qualification of shareholders. In the so-called dispute over the identification of shareholders between the well-known shareholders and the dormant shareholders, if there is only a secret contractual agreement between the so-called dormant shareholders and the anonymous shareholders, If the other shareholders of the company do not know or agree with the identity of the so-called dormant shareholders, then the dormant shareholders cannot be regarded as shareholders of the company. At the same time, shareholders with no actual capital contribution, but after the company has obtained a business license, its shareholder identity should generally be recognized. In a shareholder qualification dispute with a labor relationship with the company or with an incidental term, so long as such conditions do not contravene the provisions of principle of the Company Law and do not harm the interests of the bona fide third party, The qualification of such qualified shareholders shall be confirmed. When a person's contribution to the company is not "named", it is still necessary to recognize or deny a person's shareholder qualification in substance. In the case of the form of borrowing in name, but in the case of investing in equity, it can generally be recognized that it has shareholder qualification; on the contrary, the case of investment in equity in nominal terms, but in fact a borrowing relationship, can generally deny that it is a shareholder of a company. In a limited company, when the shareholder qualification is obtained by inheritance, the restriction is valid if the articles of association of the company or the resolution of the shareholders' meeting restrict the shareholder qualification of the successor. But this restriction does not limit the portion of inheritance that heirs to as property rights. When dealing with the dispute between the shareholders and the third party of the company, especially in the case of lifting the veil of the company, the principle of emphasizing substance and neglecting the appearance should be adopted when the qualification of shareholders is confirmed or denied. Since the company law adheres to the concept of "attaching importance to procedure, efficiency and safety" in its external interests, and follows the concept of "attaching importance to substance, fairness and good faith" to its internal interests, the referee should combine the litigation requests of different cases. According to the above evidence materials in different cases in different degrees of proof, flexible use of evidence materials.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
本文编号：2188229
[Abstract]:How to determine the identity of shareholders is directly related to the rights and obligations between investors and companies. In addition to the usual shareholder identification litigation, how to determine the identity of the shareholders is an important problem to be solved in many kinds of dispute cases in the operation of shareholders' rights. In this paper, we believe that in order to identify the shareholders of a company, we must always maintain the relative stability of the company, encourage and protect investors, and pay attention to the protection of bona fide third parties outside the company. Comprehensive analysis and grasp of the administrative registration department, the company's articles of association, shareholders' register, capital contribution certificate and other materials. At the same time, according to the relevant legal theory of the company law, according to the different cases, the evidence materials of confirming the identity of the shareholders of the company are distinguished and confirmed according to their different properties. In a dispute about shareholder qualification, if it is an internal dispute, it should generally be based on the expression of the true will of the parties, and whether the parties actually contribute is the main criterion for determining the qualification of shareholders. And can not only be based on administrative registration and other surface evidence to mechanical response. In addition, whether the parties actually enjoy the rights of shareholders, such as the right to dividends and participate in voting rights, is also an important reference to measure the qualification of shareholders. In the so-called dispute over the identification of shareholders between the well-known shareholders and the dormant shareholders, if there is only a secret contractual agreement between the so-called dormant shareholders and the anonymous shareholders, If the other shareholders of the company do not know or agree with the identity of the so-called dormant shareholders, then the dormant shareholders cannot be regarded as shareholders of the company. At the same time, shareholders with no actual capital contribution, but after the company has obtained a business license, its shareholder identity should generally be recognized. In a shareholder qualification dispute with a labor relationship with the company or with an incidental term, so long as such conditions do not contravene the provisions of principle of the Company Law and do not harm the interests of the bona fide third party, The qualification of such qualified shareholders shall be confirmed. When a person's contribution to the company is not "named", it is still necessary to recognize or deny a person's shareholder qualification in substance. In the case of the form of borrowing in name, but in the case of investing in equity, it can generally be recognized that it has shareholder qualification; on the contrary, the case of investment in equity in nominal terms, but in fact a borrowing relationship, can generally deny that it is a shareholder of a company. In a limited company, when the shareholder qualification is obtained by inheritance, the restriction is valid if the articles of association of the company or the resolution of the shareholders' meeting restrict the shareholder qualification of the successor. But this restriction does not limit the portion of inheritance that heirs to as property rights. When dealing with the dispute between the shareholders and the third party of the company, especially in the case of lifting the veil of the company, the principle of emphasizing substance and neglecting the appearance should be adopted when the qualification of shareholders is confirmed or denied. Since the company law adheres to the concept of "attaching importance to procedure, efficiency and safety" in its external interests, and follows the concept of "attaching importance to substance, fairness and good faith" to its internal interests, the referee should combine the litigation requests of different cases. According to the above evidence materials in different cases in different degrees of proof, flexible use of evidence materials.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
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