设立中公司法律地位及责任研究
发布时间：2018-11-21 15:19
【摘要】：观世界各国立法,不难发现对设立中公司的法律地位、权利能力等问题多采回避态度。我国也只确立了发起人在公司设立过程中的法律责任,理论上和实践中都出现了各种难题无法解决,因此有讨论设立中公司法律地位,公司设立过程中的责任机制的必要性。 笔者借鉴了世界上较为成熟的公司法制度和理论,对设立中公司的法律地位及责任归属进行了研究,全文共分为以下几个部分： 引言部分笔者提出了现行《公司登记管理条例》关于不动产出资设立公司的规定与现行《公司法》关于公司成立时间的规定具有冲突性的问题,该问题的解答对于解决公司设立过程中引发的诸多法律问题具有举足轻重的意义。 第一部分：对该法律冲突进行理论分析,认为只有明确设立中公司具有接受不动产的能力才能解决此矛盾,从而探讨研究设立中公司法律地位及责任归属的必要性。 第二部分：对设立中公司的概念、起止时间和法律特征等几个基本问题进行了论述,以便进一步分析后面的问题。 第三部分：从设立中公司的民事能力和法律性质两个方面进行考察。认为设立中公司具有相应的民事权利能力和行为能力及相对独立的责任能力。在对现有的“无权利能力社团说”、“合伙说”、“非法人团体说”等理论进行批判的基础上,得出设立中公司无论从实体形态上看,还是从民事权利能力的有无和大小上讲,其性质都更接近于法人,“准法人说”能够较为合理地解释公司立法与公司设立实践中出现的问题。 第四部分：着重考察设立中公司的法律地位。各国公司法虽然对设立中公司的法律地位没有做出十分明确的规定,但从各国的相关规定及司法判例中均可找到相关的规定,由此看出,赋予设立中公司一定法律地位的做法己渐成公司立法的趋势。本文从发起人和设立中公司、成立后公司的关系以及设立中公司和成立后公司的关系角度进行了分析,认为我国也应明确设立中公司相对独立的法律地位。 第五部分：探讨设立中公司责任的归属。首先对设立中公司的行为进行了分类,分析了不同行为下的不同责任,然后以公司设立成功与设立失败两种不同的命运为基点,来考察设立中公司分别以拟成立公司的名义、以设立中公司的名义和以行为人个人的名义所为行为下不同的责任归属。 第六部分：分析了我国现有公司法的不足和司法实践的混乱,提出了笔者对我国构建设立中公司制度的建议。
[Abstract]:Looking at the legislation of countries in the world, it is not difficult to find that the legal status, right ability and other issues of the established company are more evasive. China has only established the legal liability of the promoters in the process of the establishment of the company. In theory and in practice, there are various problems that can not be solved, so there is the necessity of discussing the legal status of the company and the responsibility mechanism in the process of the establishment of the company. The author has studied the legal status and the responsibility attribution of the company in the process of establishment by referring to the more mature company law system and theory in the world. The full text is divided into the following parts: the introduction part of the author put forward the current "Company Registration regulations" on the establishment of real estate investment company provisions and the current "Company Law" on the establishment of the company has the provisions of the time of the establishment of the company There are conflicting issues, The solution of this question is of great significance to solve many legal problems caused by the establishment of the company. The first part is the theoretical analysis of the conflict of laws, which holds that only when the company is established has the ability to accept immovable property can the contradiction be solved, and the necessity of studying the legal status and the attribution of responsibility of the company in the process of establishment is discussed. The second part discusses the concept, starting and ending time and legal characteristics of the company in establishment, in order to further analyze the latter problems. The third part: from the establishment of the company's civil capacity and legal nature of two aspects. The author thinks that the company has the corresponding capacity of civil rights, behavior and relative independent responsibility. On the basis of criticizing the existing theories of "powerless society", "partnership theory", "unincorporated group theory" and so on, it is concluded that the establishment of a company is not only based on its substantial form, but also on the existence and size of its capacity for civil rights. Its nature is more similar to that of legal person, "quasi-legal person theory" can reasonably explain the problems in the legislation of company and the practice of company establishment. Part IV: focus on the establishment of the legal status of the company. Although there is no very clear regulation on the legal status of the company in its establishment, the relevant provisions can be found in the relevant regulations and judicial precedents of various countries. The practice of conferring a certain legal status on the establishment of a company has gradually become a trend of company legislation. This paper analyzes the relationship between the initiator and the established company, the relationship between the established company and the established company, and the relationship between the established company and the post-establishment company. It is concluded that China should also make clear the relatively independent legal status of the established company. The fifth part: to discuss the attribution of corporate responsibility in the process of establishment. First of all, it classifies the behavior of the established company, analyzes the different responsibilities under the different behavior, and then, based on the two different fates of success and failure of the establishment of the company, investigates the establishment of the company respectively in the name of the company to be established. Different responsibilities are assigned in the name of the company under establishment and in the individual name of the perpetrator. In the sixth part, the author analyzes the deficiency of the existing company law and the confusion of the judicial practice, and puts forward some suggestions on the establishment of the company system in our country.
【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：2347362
[Abstract]:Looking at the legislation of countries in the world, it is not difficult to find that the legal status, right ability and other issues of the established company are more evasive. China has only established the legal liability of the promoters in the process of the establishment of the company. In theory and in practice, there are various problems that can not be solved, so there is the necessity of discussing the legal status of the company and the responsibility mechanism in the process of the establishment of the company. The author has studied the legal status and the responsibility attribution of the company in the process of establishment by referring to the more mature company law system and theory in the world. The full text is divided into the following parts: the introduction part of the author put forward the current "Company Registration regulations" on the establishment of real estate investment company provisions and the current "Company Law" on the establishment of the company has the provisions of the time of the establishment of the company There are conflicting issues, The solution of this question is of great significance to solve many legal problems caused by the establishment of the company. The first part is the theoretical analysis of the conflict of laws, which holds that only when the company is established has the ability to accept immovable property can the contradiction be solved, and the necessity of studying the legal status and the attribution of responsibility of the company in the process of establishment is discussed. The second part discusses the concept, starting and ending time and legal characteristics of the company in establishment, in order to further analyze the latter problems. The third part: from the establishment of the company's civil capacity and legal nature of two aspects. The author thinks that the company has the corresponding capacity of civil rights, behavior and relative independent responsibility. On the basis of criticizing the existing theories of "powerless society", "partnership theory", "unincorporated group theory" and so on, it is concluded that the establishment of a company is not only based on its substantial form, but also on the existence and size of its capacity for civil rights. Its nature is more similar to that of legal person, "quasi-legal person theory" can reasonably explain the problems in the legislation of company and the practice of company establishment. Part IV: focus on the establishment of the legal status of the company. Although there is no very clear regulation on the legal status of the company in its establishment, the relevant provisions can be found in the relevant regulations and judicial precedents of various countries. The practice of conferring a certain legal status on the establishment of a company has gradually become a trend of company legislation. This paper analyzes the relationship between the initiator and the established company, the relationship between the established company and the established company, and the relationship between the established company and the post-establishment company. It is concluded that China should also make clear the relatively independent legal status of the established company. The fifth part: to discuss the attribution of corporate responsibility in the process of establishment. First of all, it classifies the behavior of the established company, analyzes the different responsibilities under the different behavior, and then, based on the two different fates of success and failure of the establishment of the company, investigates the establishment of the company respectively in the name of the company to be established. Different responsibilities are assigned in the name of the company under establishment and in the individual name of the perpetrator. In the sixth part, the author analyzes the deficiency of the existing company law and the confusion of the judicial practice, and puts forward some suggestions on the establishment of the company system in our country.
【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
【参考文献】
相关期刊论文 前10条
1 胡玉明;论设立中公司的法律地位[J];当代法学;2000年04期
2 崔勤之;股份有限公司设立失败的法律后果[J];法学杂志;1999年03期
3 毛健铭;略论设立中公司——基本理论问题探讨[J];法学;2002年10期
4 蒋大兴;行为能力欠缺者的公司发起人资格——基于法解释学的一般套路[J];甘肃政法学院学报;2005年03期
5 杨联明;设立中公司的法律地位研究[J];河北法学;2003年03期
6 梁上上;股份公司发起人的责任[J];法学研究;1997年06期
7 杨联明;公司设立的法律性质探析[J];探索;2002年01期
8 尹田;论非法人团体的法律地位[J];现代法学;2003年05期
9 曹顺明;设立中公司法律问题研究[J];政法论坛;2001年05期
10 江平,孔祥俊;论股权[J];中国法学;1994年01期
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