论公司设立瑕疵及救济途径的完善
发布时间：2018-09-19 12:51
【摘要】：我国公司法在公司设立方面实行严格的设立条件和程序,例如在对公司资本制度、股东出资数额、设立程序等方面都有严格而具体的要求,但是由于我国在公司设立方面的实践时间并不长,加之社会上整体性的信用缺失,导致公司设立行为并不像法律所设想的具有较高的规范性程度。因此,在公司法实务中,公司设立方面便经常出现问题,其中最典型的就是公司设立瑕疵问题。 公司设立瑕疵的出现不仅对公司的人格存续、对公司发起人及相关利害关系人的利益会产生一定的影响,而且对社会的交易秩序和交易环境都会产生不同程度的破坏。尽管公司法中有一些关于股东出资不合法律要求时如何补正等方面内容的规定,最高人民法院关于适用《中华人民共和国公司法》若干问题的规定(三)(以下简称《公司法》司法解释三)更是进一步细化了公司成立前合同债务的责任主体以及如何督促股东全面履行出资义务等方面的内容,但是,我国公司法中直接规范公司设立瑕疵问题的条文很少,只有《公司法》第一百九十九条有关于公司登记撤销的规定。尽管这一条文有其值得肯定的地方,其建立了公司设立瑕疵行政撤销制度,但也有着很明显的不足,并不能应对公司法实践中纷繁复杂的问题。而且《公司法》的这一规定,并不符合公司法关于公司设立与撤销的内涵。因为公司的登记撤销行为只是一种程序性行为,是登记机关对错误登记而进行的撤销登记的行政行为,而公司设立无效与撤销则是为了维护相关利害关系人的利益,应特殊主体的诉讼请求,由司法机关对私权就行救济与保护的一种措施。而只有当司法机关通过诉讼程序判决宣告公司设立无效或撤销公司,依据法律使得公司法人人格归于消灭时,登记机关才能依据判决撤销登记。由此可知,我国公司法中不仅缺少有关公司设立瑕疵的规范,而且仅有的规范也存在着明显的不足。 在公司法实务中,关于如何保障相关利害关系人的权益及如何确定责任承担的主体及方式等等,途径有多条,方法有多种,除了补正救济外,我们仍需要从源头上寻找问题所在,以进一步规范公司设立行为,确保公司法律人格存续的合法性,以稳定我国的市场秩序。因而,对我国公司法实务中公司设立瑕疵问题的探索便具有重大的实践意义。同时在借鉴世界各国立法与实践经验的基础上,选择其中较为合理且适合我国具体国情的公司设立瑕疵的制度模式,建立健全公司设立瑕疵法律制度,是稳定我国市场秩序和提高市场交易安全与效率的必然要求。本文从公司设立瑕疵的涵义和产生原因着手,通过分析两大法系关于公司设立瑕疵的规制制度,认为应认真研究与比较两大法系关于公司设立瑕疵的规制制度,以借鉴与选择其中较为合理且适合我国具体国情的部分,同时总结了我国公司法关于公司设立瑕疵规定所存在的问题与不足,并在此基础上提出了一些关于如何完善我国公司设立瑕疵救济途径的建议。
[Abstract]:The company law of our country implements strict conditions and procedures for the establishment of a company, such as strict and specific requirements for the capital system, the amount of shareholders'contribution, the establishment procedure and so on. However, due to the short practice time in the establishment of a company in our country and the lack of credit in the whole society, the establishment of a company is caused. Actions are not as normative as the law envisages. Therefore, in the practice of corporate justice, problems often arise in the establishment of a company, the most typical of which is the flaw in the establishment of a company.
The emergence of flaws in the establishment of a company will not only affect the personality of the company, but also affect the interests of the promoters and related stakeholders of the company, but also destroy the social order and trading environment to varying degrees. The provisions of the Supreme People's Court on the application of the Company Law of the People's Republic of China (3) (hereinafter referred to as the "Company Law" Judicial Interpretation III) further refine the subject of liability for contractual debts prior to the establishment of the company and how to urge shareholders to fully fulfill their obligations to contribute capital, etc. There are very few provisions in the Law that directly regulate the defects of incorporation of a company, but only Article 199 of the Company Law stipulates the cancellation of company registration. Although this article has its affirmative points and establishes the system of administrative cancellation of incorporation defects, it also has obvious shortcomings and can not deal with the complicated practice of the Company Law. Moreover, this stipulation of the Company Law does not conform to the connotation of the Company Law concerning the establishment and revocation of a company, because the revocation of a company's registration is only a procedural act, an administrative act of the registration authority to revoke the registration of an incorrect registration, and the invalidation and revocation of a company's establishment is to safeguard the relevant interests. The interests of the parties concerned shall be remedied and protected by the judicial organ at the request of a special subject. Only when the judicial organ declares the establishment of the company invalid or cancels the company by procedural judgment and makes the personality of the company legal person disappear according to law, the registration organ can cancel the registration according to the judgment. It can be seen that the company law of our country not only lacks the norms about the flaws of company establishment, but also has obvious deficiencies in the only norms.
In the practice of Corporation law, there are many ways to protect the rights and interests of relevant stakeholders and determine the subject and way of liability. Besides remedy, we still need to find the problem from the source to further standardize the behavior of corporation establishment and ensure the legitimacy of the legal personality of corporation. In order to stabilize the market order of our country, it is of great practical significance to explore the flaws in the establishment of Companies in the practice of our company law. The establishment of a defective legal system is an inevitable requirement for stabilizing the market order and improving the safety and efficiency of market transactions in China.This paper begins with the connotation and causes of the defective establishment of a company and analyzes the regulation system of the defective establishment of a company in the two legal systems.It is believed that the two legal systems concerning the defective establishment of a company should be studied and compared carefully. The regulation system is to draw lessons from and select the part which is more reasonable and suitable for China's specific national conditions. At the same time, the paper summarizes the problems and shortcomings of the company law on the provisions of the company establishment defects, and on this basis, puts forward some suggestions on how to improve the way of remedy for the company establishment defects in China.
【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：2250173
[Abstract]:The company law of our country implements strict conditions and procedures for the establishment of a company, such as strict and specific requirements for the capital system, the amount of shareholders'contribution, the establishment procedure and so on. However, due to the short practice time in the establishment of a company in our country and the lack of credit in the whole society, the establishment of a company is caused. Actions are not as normative as the law envisages. Therefore, in the practice of corporate justice, problems often arise in the establishment of a company, the most typical of which is the flaw in the establishment of a company.
The emergence of flaws in the establishment of a company will not only affect the personality of the company, but also affect the interests of the promoters and related stakeholders of the company, but also destroy the social order and trading environment to varying degrees. The provisions of the Supreme People's Court on the application of the Company Law of the People's Republic of China (3) (hereinafter referred to as the "Company Law" Judicial Interpretation III) further refine the subject of liability for contractual debts prior to the establishment of the company and how to urge shareholders to fully fulfill their obligations to contribute capital, etc. There are very few provisions in the Law that directly regulate the defects of incorporation of a company, but only Article 199 of the Company Law stipulates the cancellation of company registration. Although this article has its affirmative points and establishes the system of administrative cancellation of incorporation defects, it also has obvious shortcomings and can not deal with the complicated practice of the Company Law. Moreover, this stipulation of the Company Law does not conform to the connotation of the Company Law concerning the establishment and revocation of a company, because the revocation of a company's registration is only a procedural act, an administrative act of the registration authority to revoke the registration of an incorrect registration, and the invalidation and revocation of a company's establishment is to safeguard the relevant interests. The interests of the parties concerned shall be remedied and protected by the judicial organ at the request of a special subject. Only when the judicial organ declares the establishment of the company invalid or cancels the company by procedural judgment and makes the personality of the company legal person disappear according to law, the registration organ can cancel the registration according to the judgment. It can be seen that the company law of our country not only lacks the norms about the flaws of company establishment, but also has obvious deficiencies in the only norms.
In the practice of Corporation law, there are many ways to protect the rights and interests of relevant stakeholders and determine the subject and way of liability. Besides remedy, we still need to find the problem from the source to further standardize the behavior of corporation establishment and ensure the legitimacy of the legal personality of corporation. In order to stabilize the market order of our country, it is of great practical significance to explore the flaws in the establishment of Companies in the practice of our company law. The establishment of a defective legal system is an inevitable requirement for stabilizing the market order and improving the safety and efficiency of market transactions in China.This paper begins with the connotation and causes of the defective establishment of a company and analyzes the regulation system of the defective establishment of a company in the two legal systems.It is believed that the two legal systems concerning the defective establishment of a company should be studied and compared carefully. The regulation system is to draw lessons from and select the part which is more reasonable and suitable for China's specific national conditions. At the same time, the paper summarizes the problems and shortcomings of the company law on the provisions of the company establishment defects, and on this basis, puts forward some suggestions on how to improve the way of remedy for the company establishment defects in China.
【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2条
1 唐宏南;公司瑕疵设立制度法律研究[D];复旦大学;2012年
2 周丽慧;公司瑕疵设立研究[D];扬州大学;2012年
，本文编号：2250173
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