论我国股东以对第三人债权出资之担保制度
发布时间：2018-11-07 10:21
【摘要】：随着债权的财产性质不断强化,其作为股东对公司的出资,在实行资本法定制下的大陆法系国家,也在逐步地放宽。为了保证资本的确定性,保护公司债权人的利益,股东以对第三人债权出资,必须对出资债权的实现承担担保责任。我国在《公司法》(2005)中虽并未明确规定债权可以作为股东对公司的出资,但是也没有明令禁止。2009年公司法解释三征求意见稿中,首次提出了与股东以债权出资有关的担保制度。股东以对第三人债权出资担保制度的提出,引起了广泛热议。但是应当看到的是在2011年正式颁布的公司法解释三中并没有股东以第三人债权出资的内容。 虽然如此,对于股东以第三人债权出资的担保制度的研究却仍然有很重要的意义。笔者以中国公司法解释三征求意见稿所提内容为视角,通过借鉴其它大陆法系国家对担保制度的相关规定,试图拉开对以第三人债权出资之担保制度的讨论,并结合现今我国债转股的一些具体规定,来充实这些设计。本论文主要围绕三部分的内容进行展开：债权出资的特性、股东债权出资担保制度的理论依据和股东债权出资担保制度的设计。笔者从介绍债权出资在世界范围的基本现状出发,进而分析债权出资的三大特征并着重分析了债权出资的可行性、债权之请求权性质、债权内容的意定性和债权之非公开性的特征,决定了债权出资具有不安全的弊端。一方面为了给予投资者以更多的投资方式的选择,另一方面要确保资本的确定性和真实性,故股东以对第三人债权出资必须提供担保,担保债权的实现,以保护债权人的利益。笔者通过对大陆法系的一些国家对股东债权出资担保法律制度的分析,总结出股东以债权出资担保制度两个层面的内容,即债权瑕疵担保制度和债权实现担保制度。最后笔者对我国已有的关于股东债权出资担保制度的一些提法的缺陷进行详细分析,其缺陷一方面在于规定过于原则,在公司实务中难以操作,另一方面在于对担保制度的规定较为模糊,并没有明确分清两种不同的担保形式,或是明确其所指的是哪一层面的担保。笔者针对已有制度中的缺陷,结合德国、意大利等国家的有关规定,分别从债权瑕疵担保制度和债权实现担保制度两个层面进行论述我国股东以第三人债权出资担保制度的构建,并表达了自己的一个思考。
[Abstract]:Along with the property nature of creditor's rights being strengthened continuously, as the shareholder's contribution to the company, the countries of civil law system under the customization of capital law are also gradually loosening. In order to ensure the certainty of capital and protect the interests of the creditors of the company, the shareholders must bear the guarantee responsibility for the realization of the creditor's rights of the capital contribution in order to contribute to the third party's creditor's rights. Although our country does not explicitly stipulate that the creditor's rights can be used as the shareholder's contribution to the company in the "Company Law" (2005), it is not prohibited either. For the first time, it puts forward the guarantee system related to shareholders' contribution of creditor's rights. Shareholders to the third-party creditor's rights to contribute to the security system, caused a wide range of heated discussion. However, it should be noted that there is no shareholder's contribution from the third party's creditor's rights in the company law interpretation III, which was formally promulgated in 2011. However, the research on the guarantee system of the third party's creditor's rights is still of great significance. From the point of view of the contents of the third draft of the Chinese Company Law interpretation, the author tries to open the discussion on the guarantee system of the third party's creditor's rights by referring to the relevant provisions of other civil law countries. Combined with the current debt-equity swap some specific provisions to enrich these designs. This paper mainly focuses on three parts: the characteristics of creditor's rights contribution, the theoretical basis of shareholder's creditor's rights contribution guarantee system and the design of shareholder's creditor's rights contribution guarantee system. Based on the introduction of the basic status quo of creditor's rights contribution in the world, the author analyzes the three characteristics of creditor's rights contribution and emphatically analyzes the feasibility of creditor's rights contribution, the nature of claims' right of claim, The nature of the content of creditor's rights and the character of non-publicity of creditor's rights determine that the contribution of creditor's rights is unsafe. On the one hand, in order to give investors more choice of investment mode, on the other hand, to ensure the certainty and authenticity of capital, shareholders must provide guarantee to the third party's creditor's rights to guarantee the realization of creditor's rights in order to protect the interests of creditors. Based on the analysis of the legal system of shareholders' creditor's rights contribution in some countries of civil law system, the author summarizes the two aspects of the shareholder's creditor's rights contribution guarantee system, that is, the guarantee system of the defect of creditor's rights and the guarantee system of the realization of creditor's rights. Finally, the author makes a detailed analysis of the defects of some references to the shareholder's creditor's rights contribution guarantee system in China. On the one hand, the defects are that the provisions are too principled, and it is difficult to operate in the practice of the company. On the other hand, the provisions of the security system are rather vague, and there is no clear distinction between two different forms of security, or what level of security it refers to. In view of the defects in the existing system, the author combines the relevant provisions of Germany, Italy and other countries, This paper discusses the construction of the guarantee system of the third party's creditor's rights in our country from the two aspects of the guarantee system of the defective creditor's rights and the guarantee system of the realization of the creditor's rights, and expresses his own thinking.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
本文编号：2316052
[Abstract]:Along with the property nature of creditor's rights being strengthened continuously, as the shareholder's contribution to the company, the countries of civil law system under the customization of capital law are also gradually loosening. In order to ensure the certainty of capital and protect the interests of the creditors of the company, the shareholders must bear the guarantee responsibility for the realization of the creditor's rights of the capital contribution in order to contribute to the third party's creditor's rights. Although our country does not explicitly stipulate that the creditor's rights can be used as the shareholder's contribution to the company in the "Company Law" (2005), it is not prohibited either. For the first time, it puts forward the guarantee system related to shareholders' contribution of creditor's rights. Shareholders to the third-party creditor's rights to contribute to the security system, caused a wide range of heated discussion. However, it should be noted that there is no shareholder's contribution from the third party's creditor's rights in the company law interpretation III, which was formally promulgated in 2011. However, the research on the guarantee system of the third party's creditor's rights is still of great significance. From the point of view of the contents of the third draft of the Chinese Company Law interpretation, the author tries to open the discussion on the guarantee system of the third party's creditor's rights by referring to the relevant provisions of other civil law countries. Combined with the current debt-equity swap some specific provisions to enrich these designs. This paper mainly focuses on three parts: the characteristics of creditor's rights contribution, the theoretical basis of shareholder's creditor's rights contribution guarantee system and the design of shareholder's creditor's rights contribution guarantee system. Based on the introduction of the basic status quo of creditor's rights contribution in the world, the author analyzes the three characteristics of creditor's rights contribution and emphatically analyzes the feasibility of creditor's rights contribution, the nature of claims' right of claim, The nature of the content of creditor's rights and the character of non-publicity of creditor's rights determine that the contribution of creditor's rights is unsafe. On the one hand, in order to give investors more choice of investment mode, on the other hand, to ensure the certainty and authenticity of capital, shareholders must provide guarantee to the third party's creditor's rights to guarantee the realization of creditor's rights in order to protect the interests of creditors. Based on the analysis of the legal system of shareholders' creditor's rights contribution in some countries of civil law system, the author summarizes the two aspects of the shareholder's creditor's rights contribution guarantee system, that is, the guarantee system of the defect of creditor's rights and the guarantee system of the realization of creditor's rights. Finally, the author makes a detailed analysis of the defects of some references to the shareholder's creditor's rights contribution guarantee system in China. On the one hand, the defects are that the provisions are too principled, and it is difficult to operate in the practice of the company. On the other hand, the provisions of the security system are rather vague, and there is no clear distinction between two different forms of security, or what level of security it refers to. In view of the defects in the existing system, the author combines the relevant provisions of Germany, Italy and other countries, This paper discusses the construction of the guarantee system of the third party's creditor's rights in our country from the two aspects of the guarantee system of the defective creditor's rights and the guarantee system of the realization of the creditor's rights, and expresses his own thinking.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
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