论瑕疵出资股东权利的限制
发布时间：2018-12-25 12:34
【摘要】：出资问题一直以来都是公司法学界关注的焦点之一，争论颇多。《公司法解释三》的大部分条文针对出资问题作出了规制，，特别是瑕疵出资的有关争议，但是，其中，对于瑕疵出资股东的权利的限制，法条规定较为笼统概括。 股东权利的对价是出资义务，只有享有股东资格的人才应承担出资义务，股东资格的来源是发起人们签订的授受协议。所以，本文在对股东权利的理论仔细梳理的基础上，厘清了股东资格、股东、出资以及股东权利四者之间的关系。探讨了瑕疵出资股东资格问题，明确了瑕疵出资股东权利理应受限，并就受限的标准及途径提出了自己的观点。最后就权利限制的方法及后续问题提出了自己的一点建议。 本文除了导言、结论与后记以外，正文部分分为四章，各章基本内容如下： 第一章对瑕疵出资的一般理论进行了分析。从股东、出资、股东资格、股东权利四个基本概念入手，对瑕疵出资内涵和外延进行了辨析并类型化，在学者观点的基础上将瑕疵出资分为未履行出资和未适当履行出资两个类别。 第二章建立在类型化的基础上，探讨瑕疵出资股东资格的确认问题，明确了股东资格的确认和出资与否关系不大，采形式主义原则，关键要有“表示”，即发起人协议、公司章程、股东名册、工商登记证明。 第三章主要研究瑕疵出资对股东权利的影响，是否受限，如果是，如何受限等问题，对此进行了深入的法律分析。瑕疵出资股权受限的正当性表现在股东平等原则、权利义务相一致原则和利益平衡原则等，并提出限制标准应按照比例原则行使，实际操作中按照实缴比例为原则。特别就股权转让权这一问题展开研究，认为瑕疵出资股权可以转让，但转让应当限制，并确定了明知股权有瑕疵的受让人应当履行出资补充责任。 第四章就瑕疵出资股权限制的可行性进行了实际探索，得出了应从法律、公司章程、股东（大）会决议等形式进行限制，还结合国外立法经验介绍了除名制度和担保制度两种保障其他股东利益的方式，同时也提出了权利恢复的方式和起点问题。
[Abstract]:The issue of capital contribution has always been one of the focal points in the field of corporate law, and there is a lot of controversy. Most articles of the Company Law explanation III regulate the issue of capital contribution, especially the controversy about defective investment, but, among them, For the limitation of the rights of defective shareholders, the provisions of the law are more general. The consideration of shareholder's right is the obligation of capital contribution, only the person who has the qualification of shareholder should bear the obligation of contribution, and the source of shareholder's qualification is the agreement of granting and receiving signed by the promoters. Therefore, on the basis of carefully combing the theory of shareholders' rights, this paper clarifies the relationship among shareholders' qualification, shareholders, capital contribution and shareholders' rights. This paper probes into the qualification of shareholders with defective capital contribution, clarifies that the rights of shareholders with defective contributions should be restricted, and puts forward his own views on the standards and ways of limitation. At last, some suggestions are put forward on the method of right restriction and its follow-up. In addition to the introduction, conclusion and postscript, the text is divided into four chapters. The basic contents of each chapter are as follows: the first chapter analyzes the general theory of defective investment. Starting with the four basic concepts of shareholder, capital contribution, shareholder qualification and shareholder right, the connotation and extension of defective capital contribution are analyzed and classified. On the basis of scholars' view, defective investment is divided into two categories: unfulfilled investment and improper performance. The second chapter, based on the classification, discusses the confirmation of the shareholders' qualification of defective capital contribution, and makes it clear that the confirmation of the shareholder's qualification has little bearing on whether the shareholder's qualification is confirmed or not, and the principle of formalism is adopted. The key is "representation", that is, the agreement of the sponsors. Articles of association, register of shareholders, business registration certificate. The third chapter mainly studies the influence of defective capital contribution on shareholders' rights, whether it is limited, and if so, how to limit it. The legitimacy of the limitation of defective capital contribution is manifested in the principle of equality of shareholders, the principle of consistency of rights and obligations and the principle of balance of interests, and the principle that the limitation standard should be exercised according to the principle of proportion, and the principle of proportion of actual payment in practice is put forward. Especially on the issue of the right of equity transfer, the author holds that the equity of defective capital can be transferred, but the transfer should be limited, and the transferee who knows that the share right is defective should fulfill the supplementary responsibility of contribution. Chapter four explores the feasibility of the limitation of defective capital contribution, and concludes that it should be restricted in the form of law, articles of association, shareholders'(big) meeting resolution, etc. It also introduces two ways to protect the interests of other shareholders, such as delisting system and guarantee system, and puts forward the way and starting point of right restoration.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.291.91
本文编号：2391129
[Abstract]:The issue of capital contribution has always been one of the focal points in the field of corporate law, and there is a lot of controversy. Most articles of the Company Law explanation III regulate the issue of capital contribution, especially the controversy about defective investment, but, among them, For the limitation of the rights of defective shareholders, the provisions of the law are more general. The consideration of shareholder's right is the obligation of capital contribution, only the person who has the qualification of shareholder should bear the obligation of contribution, and the source of shareholder's qualification is the agreement of granting and receiving signed by the promoters. Therefore, on the basis of carefully combing the theory of shareholders' rights, this paper clarifies the relationship among shareholders' qualification, shareholders, capital contribution and shareholders' rights. This paper probes into the qualification of shareholders with defective capital contribution, clarifies that the rights of shareholders with defective contributions should be restricted, and puts forward his own views on the standards and ways of limitation. At last, some suggestions are put forward on the method of right restriction and its follow-up. In addition to the introduction, conclusion and postscript, the text is divided into four chapters. The basic contents of each chapter are as follows: the first chapter analyzes the general theory of defective investment. Starting with the four basic concepts of shareholder, capital contribution, shareholder qualification and shareholder right, the connotation and extension of defective capital contribution are analyzed and classified. On the basis of scholars' view, defective investment is divided into two categories: unfulfilled investment and improper performance. The second chapter, based on the classification, discusses the confirmation of the shareholders' qualification of defective capital contribution, and makes it clear that the confirmation of the shareholder's qualification has little bearing on whether the shareholder's qualification is confirmed or not, and the principle of formalism is adopted. The key is "representation", that is, the agreement of the sponsors. Articles of association, register of shareholders, business registration certificate. The third chapter mainly studies the influence of defective capital contribution on shareholders' rights, whether it is limited, and if so, how to limit it. The legitimacy of the limitation of defective capital contribution is manifested in the principle of equality of shareholders, the principle of consistency of rights and obligations and the principle of balance of interests, and the principle that the limitation standard should be exercised according to the principle of proportion, and the principle of proportion of actual payment in practice is put forward. Especially on the issue of the right of equity transfer, the author holds that the equity of defective capital can be transferred, but the transfer should be limited, and the transferee who knows that the share right is defective should fulfill the supplementary responsibility of contribution. Chapter four explores the feasibility of the limitation of defective capital contribution, and concludes that it should be restricted in the form of law, articles of association, shareholders'(big) meeting resolution, etc. It also introduces two ways to protect the interests of other shareholders, such as delisting system and guarantee system, and puts forward the way and starting point of right restoration.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.291.91
【参考文献】
相关期刊论文 前1条
1 李建伟;;瑕疵出资股东的股东权利及其限制的分类研究:规范、解释与实证[J];求是学刊;2012年01期
本文编号：2391129
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