虚拟股东若干法律问题研究
发布时间：2018-09-18 16:54
【摘要】：2005年《公司法》实施以来,公司法为我国公司事业的健康发展提供了良好的法律保障,然而,在实践中利用公司进行欺诈,虚设股东,虚假出资,弄虚作假,逃避出资义务、逃避债务和社会义务的现象时有发生,尤其是“虚拟股东”现象已经成为公司纠纷案件中值得注目和需要研究解决的问题。所谓虚拟股东是指以现实社会中根本不存在的人(如已死亡的人或者虚构的自然人或法人)的名义或者盗用真实人的名义向公司登记机关申请登记为公司股东。“虚拟股东”现象主要是涉及股东资格确认以及公司设立瑕疵和效力问题,也是公司诉讼中最为常见的问题,公司存在虚拟股东,对于确认其公司设立的效力,往往因为实情不同,诉讼过程中不可能有单一的公式去处理,从现行《公司法》和相关法规看,尚没有明确虚拟股东和公司行为规范办法。因此在司法实践中是一个值得研究的问题。虚拟股东的表现形式趋多元化,如“冒名”、“挂名”和“干股”股东的资格和权益在法律上如何认定以及其涉及公司的行为与第三方的关系等等,均属于应该探讨的问题。 全文分为引言、正文和结语三个部分,正文共分三部分。 第一部分是探讨虚拟股东的概念及其基本法律特征。从现行法律制度看,无论是《公司法》还是《公司登记管理条例》等其他现行法律文件,都没有明确规定虚拟股东的概念、构成要件以及法律责任等基本问题,另外,在申请设立公司的过程中,工商行政管理机关对公司的登记审查流于形式。为此,本章从虚拟股东的特点为主线,探讨虚拟股东与“隐名股东”区别、隐蔽性和不确定性、主体资格的多样性等方面进行了较为详细的阐述,以期为解决虚拟股东的资格效力有所裨益； 第二部分主要针对司法实践中审查确认实际出资股东与虚拟股东的难题,从虚拟股东的法律地位界定、虚拟股东与其他股东之间的法律关系以及虚拟股东的法律责任确定等方面入手,详细探讨分析了虚拟股东的股东资格界定标准和确认股东资格的实质要件和形式要件以及表象特征。此外,在司法实务审判方面针对虚拟股东直接关系到股东会决议的效力以及第三人的利益等问题,就虚拟股东的空股性质,结合典型案例,对股东资格确认所涉及的权利义务对等、公示与外观、保护善意第三人等原则方面进行了详细的研究。 第三部分是对虚拟股东现象的规制与立法对策的研究。主要是参照和借鉴国外立法和司法实践中有关虚拟股东的法律责任制度,包括实质要件、形式要件等不同的股东资格确认的要件理论,侧重研究了股东资格确认的相关证据效力、序位以及股东资格确认的证据效力,分析我国虚拟股东法律规制的缺陷,特别是我国公司立法中的对虚拟股东民事责任规定的不足,从而对完善股东资格确认制度、强化对公司、其他股东和善意笫三人权益的救济制度以及加强虚拟股东民事责任等方面进行研究,并提出相关对策。
[Abstract]:Since the implementation of the Company Law in 2005, the Company Law has provided a good legal guarantee for the healthy development of China's corporate undertakings. However, in practice, the phenomenon of fraud, false shareholders, false capital contribution, fraud, evasion of capital contribution obligations, and evasion of debts and social obligations has occurred from time to time, especially the phenomenon of "virtual shareholders". The so-called virtual shareholder refers to the phenomenon of applying to the company registration authority for registration as a shareholder in the name of a person who does not exist in the real society (such as a deceased person or a fictitious natural or legal person) or embezzling the name of a real person. Mainly involves the shareholder qualification confirmation as well as the company establishes the flaw and the validity question, is also the most common question in the company lawsuit, the company has the fictitious shareholder, regarding confirms its company establishes the validity, often because the fact is different, in the lawsuit process cannot have the single formula to deal with, from the present < the company law > and the related law and regulations, still There is no clear norm of virtual shareholders and corporate behavior, so it is a problem worth studying in judicial practice. The manifestations of virtual shareholders are becoming diversified, such as how to identify the qualifications and rights of the shareholders of "fake name", "registered name" and "stake stock" in law, and how to determine the relationship between the behavior of the company and the third party, etc. Belongs to the question that should be discussed.
The full text is divided into three parts: introduction, text and conclusion. The text is divided into three parts.
The first part is to discuss the concept of virtual shareholder and its basic legal characteristics. From the current legal system, whether it is < Company Law > or < Company Registration Management Regulations > and other existing legal documents, there is no clear definition of the concept of virtual shareholder, constitutive requirements and legal liability and other basic issues. In addition, in the application process of establishing a company. Therefore, this chapter discusses the differences between virtual shareholders and "dormant shareholders", the concealment and uncertainty, and the diversity of subject qualifications from the characteristics of virtual shareholders as the main line, in order to solve the problem of virtual shareholders'qualifications. Benefit;
In the second part, aiming at the problem of examining and confirming the actual shareholders and the virtual shareholders in judicial practice, the definition of the legal status of the virtual shareholders, the legal relationship between the virtual shareholders and other shareholders, and the determination of the legal liability of the virtual shareholders are discussed and analyzed in detail. In addition, in the judicial practice, the virtual shareholders have a direct bearing on the effectiveness of the resolution of the shareholders'meeting and the interests of the third party. In terms of the nature of the empty shares of the virtual shareholders, combined with typical cases, the rights and obligations involved in the confirmation of shareholders' qualification are equal. The principles of showing and appearance, protecting bona fide third party and so on have been studied in detail.
The third part is the research on the regulation and legislative countermeasure of the phenomenon of virtual shareholders.It mainly refers to and draws lessons from the legal liability system of virtual shareholders in foreign legislation and judicial practice, including the essential elements of substantive elements, formal elements and other different elements of shareholder qualification confirmation theory, focusing on the study of relevant evidence validity of shareholder qualification confirmation. This paper analyzes the defects of the legal regulation of the virtual shareholders in China, especially the deficiency of the civil liability stipulated in the company legislation, so as to perfect the shareholder qualification confirmation system, strengthen the relief system for the rights and interests of the company, other shareholders and bona fide three persons, and strengthen the virtual shareholders. Responsibilities and other aspects of the study, and put forward relevant countermeasures.
【学位授予单位】：烟台大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
本文编号：2248540
[Abstract]:Since the implementation of the Company Law in 2005, the Company Law has provided a good legal guarantee for the healthy development of China's corporate undertakings. However, in practice, the phenomenon of fraud, false shareholders, false capital contribution, fraud, evasion of capital contribution obligations, and evasion of debts and social obligations has occurred from time to time, especially the phenomenon of "virtual shareholders". The so-called virtual shareholder refers to the phenomenon of applying to the company registration authority for registration as a shareholder in the name of a person who does not exist in the real society (such as a deceased person or a fictitious natural or legal person) or embezzling the name of a real person. Mainly involves the shareholder qualification confirmation as well as the company establishes the flaw and the validity question, is also the most common question in the company lawsuit, the company has the fictitious shareholder, regarding confirms its company establishes the validity, often because the fact is different, in the lawsuit process cannot have the single formula to deal with, from the present < the company law > and the related law and regulations, still There is no clear norm of virtual shareholders and corporate behavior, so it is a problem worth studying in judicial practice. The manifestations of virtual shareholders are becoming diversified, such as how to identify the qualifications and rights of the shareholders of "fake name", "registered name" and "stake stock" in law, and how to determine the relationship between the behavior of the company and the third party, etc. Belongs to the question that should be discussed.
The full text is divided into three parts: introduction, text and conclusion. The text is divided into three parts.
The first part is to discuss the concept of virtual shareholder and its basic legal characteristics. From the current legal system, whether it is < Company Law > or < Company Registration Management Regulations > and other existing legal documents, there is no clear definition of the concept of virtual shareholder, constitutive requirements and legal liability and other basic issues. In addition, in the application process of establishing a company. Therefore, this chapter discusses the differences between virtual shareholders and "dormant shareholders", the concealment and uncertainty, and the diversity of subject qualifications from the characteristics of virtual shareholders as the main line, in order to solve the problem of virtual shareholders'qualifications. Benefit;
In the second part, aiming at the problem of examining and confirming the actual shareholders and the virtual shareholders in judicial practice, the definition of the legal status of the virtual shareholders, the legal relationship between the virtual shareholders and other shareholders, and the determination of the legal liability of the virtual shareholders are discussed and analyzed in detail. In addition, in the judicial practice, the virtual shareholders have a direct bearing on the effectiveness of the resolution of the shareholders'meeting and the interests of the third party. In terms of the nature of the empty shares of the virtual shareholders, combined with typical cases, the rights and obligations involved in the confirmation of shareholders' qualification are equal. The principles of showing and appearance, protecting bona fide third party and so on have been studied in detail.
The third part is the research on the regulation and legislative countermeasure of the phenomenon of virtual shareholders.It mainly refers to and draws lessons from the legal liability system of virtual shareholders in foreign legislation and judicial practice, including the essential elements of substantive elements, formal elements and other different elements of shareholder qualification confirmation theory, focusing on the study of relevant evidence validity of shareholder qualification confirmation. This paper analyzes the defects of the legal regulation of the virtual shareholders in China, especially the deficiency of the civil liability stipulated in the company legislation, so as to perfect the shareholder qualification confirmation system, strengthen the relief system for the rights and interests of the company, other shareholders and bona fide three persons, and strengthen the virtual shareholders. Responsibilities and other aspects of the study, and put forward relevant countermeasures.
【学位授予单位】：烟台大学
【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 何奎;实际出资人的法律责任研究[D];湖南师范大学;2012年
，本文编号：2248540
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