论有限责任公司股东除名事由的确定
发布时间：2018-11-09 09:01
【摘要】： 有限责任公司具有封闭性和人合性的特点,如何解决有限责任公司中的内部矛盾一直是各国和地区立法及司法的难点。公司法中的股权转让制度、异议股东股份回购机制、解散公司制度均无法很好的解决“捣蛋股东”给公司利益造成严重损害的问题。或者说,这些制度均不能在“捣蛋股东”、“守约股东”和公司之间建立起一座平衡三方利益的桥梁。股东除名制度就是为了解决该问题应运而生的,它在以德国为代表的国家或地区已经蓬勃发展了几十年,我国的司法实践也迫切需要该制度的建立。股东除名事由是股东除名制度中的核心部分,笔者综合运用实证分析法、历史分析法、比较分析法等研究方法,以除名事由为本文的讨论中心,以期为我国公司法中股东除名制度的建立提出自己的建议。 除了引言、结论外,本文分为三个部分: 第一章首先界定了股东除名事由的概念,明确股东除名事由在股东除名制度中的核心地位;接着通过股东除名事由与其他类似法律制度发生事由的比较,阐释了股东除名事由的特殊存在价值;最后,指出在我国的司法实践方面,由于我国没有“法官造法”的传统,现有的公司法规定无法满足现实的需要并且存在可操作性不强的问题,股东除名事由的确定显得尤为迫切。 第二章首先运用比较分析法以及历史分析法,展开确立股东除名事由的路径探索。经过比较和总结,德国等规定有股东除名制度的国家和地区在立法模式、除名事由的构成要件等方面均有所区别。笔者以公司契约论为视角,分别对法定股东除名事由和意定股东除名事由的确立标准展开讨论。最终,以合同法上的“根本违约”作为法定股东除名事由的确立标准,明确将股东除名不但要求该股东在主观上有故意或重大过失,而且要求其在客观上给公司利益造成了重大损失。意定股东除名事由则以“诚实信用原则”和“股东的合理预期”为最低确立要求,从而分别起到保护公司债权人等“第三人”和中小股东利益的作用。 第三章以第二章总结出的法定股东除名标准和意定股东除名最低要求为前提,结合德国、我国台湾地区等国家和地区的立法、司法经验,提出了笔者的立法及章程建议,期望可以为我国公司法尽快确立股东除名事由提出可行的作法。
[Abstract]:Limited liability company has the characteristics of closeness and combination of people. How to solve the internal contradiction of limited liability company has always been the difficulty of legislation and judicature in various countries and regions. In the company law, the system of share transfer, the mechanism of dissenting shareholders' share repurchase and the system of dissolving the company can not solve the problem that "tampering shareholders" cause serious harm to the interests of the company. In other words, none of these systems can build a bridge between "tampering shareholders", "contract holders" and companies to balance the interests of the three parties. In order to solve this problem, the shareholder delisting system has been developed for decades in the countries or regions represented by Germany, and the establishment of the system is urgently needed in the judicial practice of our country. The cause of shareholder delisting is the core part of the system of shareholder delisting. The author synthetically uses empirical analysis, historical analysis, comparative analysis and other research methods, taking the reason of delisting as the discussion center of this paper. In order to put forward their own suggestions for the establishment of shareholder delisting system in our company law. In addition to the introduction and conclusion, this paper is divided into three parts: the first chapter defines the concept of shareholder delisting, and clarifies the core position of shareholder delisting in the system of shareholder delisting; Secondly, through the comparison between the reasons of shareholder delisting and other similar legal systems, the special existence value of shareholder delisting is explained. Finally, it is pointed out that in the judicial practice of our country, because there is no tradition of "judge making law" in our country, the existing company law provisions can not meet the needs of reality and there are some problems that are not operable. The determination of shareholder delisting is particularly urgent. In the second chapter, comparative analysis and historical analysis are used to explore the ways to establish the cause of shareholder delisting. After comparison and conclusion, Germany and other countries and regions that have the system of shareholder delisting are different in legislative model and the constituent elements of the reasons of delisting. From the perspective of company contract theory, the author discusses the establishment standard of the reasons for the expulsion of statutory shareholders and the reasons for the expulsion of intended shareholders. Finally, taking the "fundamental breach" in contract law as the standard for establishing the legal shareholder's delisting, it is not only necessary for the shareholder to have intentional or gross negligence, but also for the shareholder to be removed from the company. Moreover, it is required to objectively cause great losses to the interests of the company. On the other hand, the principle of good faith and the reasonable expectation of shareholders should be taken as the minimum established requirements, which can protect the interests of the "third party" and the minority shareholders, respectively. The third chapter is based on the legal shareholder delisting standard and the minimum requirement of the intended shareholder delisting, combined with the legislative and judicial experience of Germany, Taiwan and other countries and regions, and puts forward the author's legislative and charter suggestions. It is expected that it can provide a feasible method for establishing the reason of shareholder removal in our company law as soon as possible.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
本文编号：2319963
[Abstract]:Limited liability company has the characteristics of closeness and combination of people. How to solve the internal contradiction of limited liability company has always been the difficulty of legislation and judicature in various countries and regions. In the company law, the system of share transfer, the mechanism of dissenting shareholders' share repurchase and the system of dissolving the company can not solve the problem that "tampering shareholders" cause serious harm to the interests of the company. In other words, none of these systems can build a bridge between "tampering shareholders", "contract holders" and companies to balance the interests of the three parties. In order to solve this problem, the shareholder delisting system has been developed for decades in the countries or regions represented by Germany, and the establishment of the system is urgently needed in the judicial practice of our country. The cause of shareholder delisting is the core part of the system of shareholder delisting. The author synthetically uses empirical analysis, historical analysis, comparative analysis and other research methods, taking the reason of delisting as the discussion center of this paper. In order to put forward their own suggestions for the establishment of shareholder delisting system in our company law. In addition to the introduction and conclusion, this paper is divided into three parts: the first chapter defines the concept of shareholder delisting, and clarifies the core position of shareholder delisting in the system of shareholder delisting; Secondly, through the comparison between the reasons of shareholder delisting and other similar legal systems, the special existence value of shareholder delisting is explained. Finally, it is pointed out that in the judicial practice of our country, because there is no tradition of "judge making law" in our country, the existing company law provisions can not meet the needs of reality and there are some problems that are not operable. The determination of shareholder delisting is particularly urgent. In the second chapter, comparative analysis and historical analysis are used to explore the ways to establish the cause of shareholder delisting. After comparison and conclusion, Germany and other countries and regions that have the system of shareholder delisting are different in legislative model and the constituent elements of the reasons of delisting. From the perspective of company contract theory, the author discusses the establishment standard of the reasons for the expulsion of statutory shareholders and the reasons for the expulsion of intended shareholders. Finally, taking the "fundamental breach" in contract law as the standard for establishing the legal shareholder's delisting, it is not only necessary for the shareholder to have intentional or gross negligence, but also for the shareholder to be removed from the company. Moreover, it is required to objectively cause great losses to the interests of the company. On the other hand, the principle of good faith and the reasonable expectation of shareholders should be taken as the minimum established requirements, which can protect the interests of the "third party" and the minority shareholders, respectively. The third chapter is based on the legal shareholder delisting standard and the minimum requirement of the intended shareholder delisting, combined with the legislative and judicial experience of Germany, Taiwan and other countries and regions, and puts forward the author's legislative and charter suggestions. It is expected that it can provide a feasible method for establishing the reason of shareholder removal in our company law as soon as possible.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
【引证文献】
中国期刊全文数据库 前1条
1 冯佰权;;构建我国股东除名制度的几点思考[J];市场周刊(理论研究);2012年09期
中国硕士学位论文全文数据库 前1条
1 甘琪;有限责任公司股东除名制度研究[D];广东商学院;2012年
，本文编号：2319963
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