公司登记不实的法律问题研究
发布时间：2018-12-20 08:15
【摘要】：当公司登记的价值天平在安全与效率中摇摆不定时,我国的立法者把价值砝码加向了安全一方,核心表现为保障交易的安全与秩序。由于公权力的介入,公司登记过程中多显露出公法上的效果,相比之下,登记完成后私法效果才占据了主导地位,公司登记不实的法律表现和后果就发生在这一阶段。当权利人因为公司登记不实而遭受损害却得不到救济尤其是私法上的救济时,不得不让人怀疑安全价值在其中发生了扭曲。在国外,比如德国、法国、美国等,对公司登记不实的法律规制都有比较深度和系统的规定。目前,我国对公司登记制度的研究仍处于“边缘化”的状态,国内的研究大多停留在登记的效力、性质、范围等理论层面,对登记不实法律责任的完善特别是民事责任构建少之又少；就我国立法层面而言,登记法律规定较为分散,并且遗漏了部分公司登记不实法律责任的主体仅仅追究行为人的行政责任和刑法上的责任,民事责任十分缺乏和单一,而现实中遭受损失的第三人往往更愿意追究行为人的民事赔偿责任,以弥补自己的损失。可见,登记不实的理论、立法与现实不匹配的矛盾表现得尤为突出。在市场经济不断发展的今天,每个人都有可能遇到投资的问题,面对一个被陌生人统治的世界。尽管我们可以自由选择交易的对象、方式和内容,但最终还是不得已将自身的交易安全托付给了素未谋面的陌生人,陌生人的专业素养和职业道德决定了交易风险的系数。在个人诚信缺失的社会环境下,笔者试图借鉴国外立法的经验,立足于本国的实际情况,完善我国登记不实的法律规制体系,为权利人撑起一把遮风挡雨的“救济之伞”。 为了先在理论上确立对公司登记不实的认识,引起人们对登记不实的关注和重视,不得不对公司登记不实重新加以定义,在责任主体的标准下对第三人权利影响较大的几类登记不实行为重点讨论。在对公司登记不实境外法律规制进行分析的过程中,先从宏观上把握两大法系关于公司登记的立法特点,再从微观层面选取三个有代表性国家和地区的公司法说明对登记不实行为规制的完善程度,从而凸显我国公司登记不实的法律规制存在的缺陷,为分析、解决我国实践中的问题打下基础。基于对国外立法现状认识得出,我国对公司登记不实的法律规制的构建应从公司登记不实有关民事责任机制、登记机关审查权责、公司登记相关公示制度、公司年检制度的层面来提出合理化的建议。
[Abstract]:When the balance of value of company registration is vacillating in safety and efficiency, the legislators of our country add the value weight to the safe side, the core of which is to ensure the security and order of the transaction. Due to the intervention of public power, the effect of public law appears in the process of company registration. In contrast, after the completion of registration, the effect of private law occupies a dominant position, and the legal performance and consequences of false company registration occur in this stage. When the obligee suffers damage due to false company registration but can not get relief, especially in private law, it has to be suspected that the value of security has been distorted in it. In foreign countries, such as Germany, France and the United States, there are deep and systematic regulations on the false registration of companies. At present, the research on the company registration system in our country is still in the state of "marginalization", and most of the domestic studies remain at the theoretical level, such as the effectiveness, nature and scope of registration. The perfection of legal liability of false registration, especially the construction of civil liability is very little; On the legislative level of our country, the provisions of registration law are scattered, and some of the subjects of false legal liability of company registration are only investigated for the administrative responsibility and criminal law liability of the perpetrator, and the civil liability is very lacking and single. In reality, the third party who suffered losses is more willing to investigate the civil liability of the perpetrator to make up for his loss. Thus, the contradiction between the theory of false registration, legislation and reality is particularly prominent. With the development of market economy, everyone is likely to face the problem of investment and a world ruled by strangers. Although we are free to choose the object, the way and the content of the transaction, we still have to entrust our transaction safety to strangers who have never met each other. The professional quality and professional ethics of strangers determine the coefficient of transaction risk. Under the social environment of lack of personal integrity, the author tries to draw lessons from the experience of foreign legislation, based on the actual situation of our country, perfect the legal regulation system of false registration in our country, and support a relief umbrella for the right holders to protect themselves from the wind and rain. In order to establish the understanding of false company registration in theory and arouse people's attention to the false registration, we have to redefine the false registration of the company. It is discussed emphatically that several kinds of registration which have great influence on the rights of the third party under the criterion of the subject of responsibility. In the process of analyzing the foreign legal regulation of false company registration, we first grasp the legislative characteristics of the two major legal systems on company registration from a macro perspective. Then select three representative countries and regions from the micro level of the company law notes the degree of perfection of not implementing the registration as the regulation, thus highlighting the defects of the false legal regulation of company registration in China, for the analysis. To solve the problems in China's practice and lay the foundation. Based on the understanding of the current situation of foreign legislation, it is concluded that the construction of the legal regulation of false company registration in our country should be based on the civil liability mechanism of false company registration, the examination of the right and responsibility of the registration authority, and the public announcement system related to the company registration. The company annual inspection system to put forward the level of rationalization of the proposal.
【学位授予单位】：湖南师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
本文编号：2387709
[Abstract]:When the balance of value of company registration is vacillating in safety and efficiency, the legislators of our country add the value weight to the safe side, the core of which is to ensure the security and order of the transaction. Due to the intervention of public power, the effect of public law appears in the process of company registration. In contrast, after the completion of registration, the effect of private law occupies a dominant position, and the legal performance and consequences of false company registration occur in this stage. When the obligee suffers damage due to false company registration but can not get relief, especially in private law, it has to be suspected that the value of security has been distorted in it. In foreign countries, such as Germany, France and the United States, there are deep and systematic regulations on the false registration of companies. At present, the research on the company registration system in our country is still in the state of "marginalization", and most of the domestic studies remain at the theoretical level, such as the effectiveness, nature and scope of registration. The perfection of legal liability of false registration, especially the construction of civil liability is very little; On the legislative level of our country, the provisions of registration law are scattered, and some of the subjects of false legal liability of company registration are only investigated for the administrative responsibility and criminal law liability of the perpetrator, and the civil liability is very lacking and single. In reality, the third party who suffered losses is more willing to investigate the civil liability of the perpetrator to make up for his loss. Thus, the contradiction between the theory of false registration, legislation and reality is particularly prominent. With the development of market economy, everyone is likely to face the problem of investment and a world ruled by strangers. Although we are free to choose the object, the way and the content of the transaction, we still have to entrust our transaction safety to strangers who have never met each other. The professional quality and professional ethics of strangers determine the coefficient of transaction risk. Under the social environment of lack of personal integrity, the author tries to draw lessons from the experience of foreign legislation, based on the actual situation of our country, perfect the legal regulation system of false registration in our country, and support a relief umbrella for the right holders to protect themselves from the wind and rain. In order to establish the understanding of false company registration in theory and arouse people's attention to the false registration, we have to redefine the false registration of the company. It is discussed emphatically that several kinds of registration which have great influence on the rights of the third party under the criterion of the subject of responsibility. In the process of analyzing the foreign legal regulation of false company registration, we first grasp the legislative characteristics of the two major legal systems on company registration from a macro perspective. Then select three representative countries and regions from the micro level of the company law notes the degree of perfection of not implementing the registration as the regulation, thus highlighting the defects of the false legal regulation of company registration in China, for the analysis. To solve the problems in China's practice and lay the foundation. Based on the understanding of the current situation of foreign legislation, it is concluded that the construction of the legal regulation of false company registration in our country should be based on the civil liability mechanism of false company registration, the examination of the right and responsibility of the registration authority, and the public announcement system related to the company registration. The company annual inspection system to put forward the level of rationalization of the proposal.
【学位授予单位】：湖南师范大学
【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 陈福廷;论我国公司登记公证制度的完善[D];上海师范大学;2013年
，本文编号：2387709
本文链接：https://www.wllwen.com/falvlunwen/gongsifalunwen/2387709.html
