论有限责任公司股东身份确认
发布时间：2019-02-09 19:24
【摘要】：股东身份是取得和行使股东权利、承担股东义务的基础。确认公司股东身份是解决绝大多数有关公司争议的前提。无论是对公司内部或是对公司的债权人而言,正确认定有限责任公司股东均具有非常重要的意义。 一般来说,有限责任公司股东身份的取得,主要有以下途径：一是参与公司设立或者认缴公司出资而成为公司的原始股东；二是在公司成立后,通过继受公司原股东的股权而成为公司的股东；三是在公司成立后,因公司增加资本金而新加入公司,成为公司股东。无论是通过以上何种途径取得股东身份,有限责任公司股东所持有的股权均需依托一定的方式来证明,当事人也需以一定的方式宣示其公司股东身份,以便相关利害关系人对其公司股东身份有一个准确的判断。实践中,认定有限责任公司的股东身份,通常需要结合公司章程、公司股东名册、公司登记文件、出资证明文件等形式化证据进行认定,必要时还需要结合签署公司章程、实际出资、公司其他股东的意思表示等实质性证据加以认定。 笔者认为,要准确认定有限责任公司股东身份,应当区分当事人不同的取得方式,对各种形式化证据和实质性证据进行综合认定。在股东身份原始取得的情况下,参与签署公司章程并被公司章程记载为股东,对确认当事人的股东身份具有决定性意义,当事人被有限责任公司股东名册记载为股东,具有对抗公司的效力；在股东身份继受取得的情形下,不但要考量股权转让协议、遗赠协议等形式的证据,还需要进一步探究有限责任公司其他股东的真实意思。另外,在涉及公司之外第三人利益的情况下,考虑到公司法的公示主义和外观主义特征,应当优先确认工商登记文件对确认有限责任公司股东身份的证明效力。 本文立足于公司法团体法的特征,从有限责任公司股东所具备的特征出发,综合分析当事人在取得股东身份的过程中所形成的不同形式的证据材料,确立了认定有限责任公司股东身份的若干原则和不同的具体规则,并结合笔者亲身司法实践,对几种特殊情形下的股东身份认定进行了探索性的论述,希望在认定有限责任公司股东身份的过程中,确立正确的司法理念、合理地分配举证责任,从而实现维护公司稳定、追求交易安全和效率的价值取向。 本文以笔者所办理的一个真实案件提出问题,从认定有限责任公司股东身份的法理分析、认定有限责任公司股东身份的原则、认定有限责任公司股东身份的证据以及解决认定有限责任公司股东身份过程中的证据冲突等几个方面进行阐述,表明观点,并依据所持观点,对实践中存在的,几种特殊情形下有限责任公司股东身份的认定问题进行分析,最后结合所论述的有关认定有限责任公司股东身份的原则、规则等,探讨性地提出了对真实案件的处理办法,试图为实践中认定有限责任公司的股东身份开辟一条便捷而又可行路径。
[Abstract]:The identity of the shareholders is the basis for obtaining and exercising the rights of the shareholders and the obligations of the shareholders. The confirmation of the company's shareholder status is the premise to solve most of the disputes of the company. It is of great importance to properly identify the shareholders of a limited liability company, whether it is within the company or to the creditors of the company. In general, the acquisition of the shareholder status of the limited liability company mainly includes the following ways: one is the original shareholder of the company who is involved in the establishment of the company or the capital contribution of the company; and 2. After the establishment of the company, it becomes the stock of the company by the equity of the original shareholders of the company. After the establishment of the company, the company has newly joined the company as a result of the company's increased capital, becoming the company's share In case of any shareholder's status through the above approach, the equity held by the shareholders of the limited liability company shall be proved in a certain way, and the parties need to declare their shareholders' body in a certain manner. in so that that relevant interested party has an accurate judgment on the identity of the company's shareholders In practice, the identity of the shareholders of the limited liability company is determined, and the formal evidence such as the company's articles of association, the register of the company's shareholders, the company's registration documents and the supporting documents shall be recognized, and the company's articles of association need to be combined if necessary. The meaning of other shareholders of the Company shall be recognized as substantive evidence. The author holds that, in order to accurately identify the shareholder status of a limited liability company, it is necessary to distinguish between the different ways of obtaining the limited liability company, and make an overview of the formal evidence and the substantive evidence. In the case of the original acquisition of the shareholder's identity, the Company is involved in the signing of the Articles of Association and is recorded as a shareholder by the Articles of Association, which is of decisive significance to the confirmation of the identity of the shareholders of the party. The party is recorded as a shareholder by the register of the shareholders of the limited liability company, and has a counter-company. The effect of other shareholders of the limited liability company needs to be further explored in the case of the shareholder's identity, in the case of the acquisition, not only to consider the form of the equity transfer agreement, the legacy agreement or the like, but also to further explore the true nature of the other shareholders of the limited liability company In addition, in the case of the interests of the third person other than the Company, taking into account the publicity and appearance characteristics of the Company Law, it is important to confirm the certificate of the registration document of the industry and commerce on the identification of the shareholders of the limited liability company. This paper is based on the characteristics of the company law group law, from the characteristics of the shareholders of the limited liability company, and analyzes the different forms of the parties in the process of obtaining the shareholder's identity. According to the author's personal judicial practice, the author has made an exploratory discussion on the identification of the shareholders in several special cases, and it is hoped that the shareholders of the limited liability company should In the course of the process, the right judicial idea is established and the burden of proof is reasonably distributed, so as to realize the stability of the company and pursue the safety and efficiency of the transaction. The value orientation of the limited liability company is based on a real case handled by the author, from the legal analysis of the identity of the shareholders of the limited liability company, and the identification of the limited liability company. The principle of the identity of the shareholders, the evidence of the identification of the shareholders of the limited liability company and the conflict of evidence in the process of the identification of the shareholders of the limited liability company are set forth in this paper, This paper makes an analysis on the identification of the shareholder status of the limited liability company in the practice, and finally, based on the discussion of the principle, the rule and so on of the shareholders' identity of the limited liability company, the paper discusses the actual situation of the shareholders' identity of the limited liability company. The way to deal with the case is to open a way to identify the shareholders of the limited liability company in practice
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
本文编号：2419314
[Abstract]:The identity of the shareholders is the basis for obtaining and exercising the rights of the shareholders and the obligations of the shareholders. The confirmation of the company's shareholder status is the premise to solve most of the disputes of the company. It is of great importance to properly identify the shareholders of a limited liability company, whether it is within the company or to the creditors of the company. In general, the acquisition of the shareholder status of the limited liability company mainly includes the following ways: one is the original shareholder of the company who is involved in the establishment of the company or the capital contribution of the company; and 2. After the establishment of the company, it becomes the stock of the company by the equity of the original shareholders of the company. After the establishment of the company, the company has newly joined the company as a result of the company's increased capital, becoming the company's share In case of any shareholder's status through the above approach, the equity held by the shareholders of the limited liability company shall be proved in a certain way, and the parties need to declare their shareholders' body in a certain manner. in so that that relevant interested party has an accurate judgment on the identity of the company's shareholders In practice, the identity of the shareholders of the limited liability company is determined, and the formal evidence such as the company's articles of association, the register of the company's shareholders, the company's registration documents and the supporting documents shall be recognized, and the company's articles of association need to be combined if necessary. The meaning of other shareholders of the Company shall be recognized as substantive evidence. The author holds that, in order to accurately identify the shareholder status of a limited liability company, it is necessary to distinguish between the different ways of obtaining the limited liability company, and make an overview of the formal evidence and the substantive evidence. In the case of the original acquisition of the shareholder's identity, the Company is involved in the signing of the Articles of Association and is recorded as a shareholder by the Articles of Association, which is of decisive significance to the confirmation of the identity of the shareholders of the party. The party is recorded as a shareholder by the register of the shareholders of the limited liability company, and has a counter-company. The effect of other shareholders of the limited liability company needs to be further explored in the case of the shareholder's identity, in the case of the acquisition, not only to consider the form of the equity transfer agreement, the legacy agreement or the like, but also to further explore the true nature of the other shareholders of the limited liability company In addition, in the case of the interests of the third person other than the Company, taking into account the publicity and appearance characteristics of the Company Law, it is important to confirm the certificate of the registration document of the industry and commerce on the identification of the shareholders of the limited liability company. This paper is based on the characteristics of the company law group law, from the characteristics of the shareholders of the limited liability company, and analyzes the different forms of the parties in the process of obtaining the shareholder's identity. According to the author's personal judicial practice, the author has made an exploratory discussion on the identification of the shareholders in several special cases, and it is hoped that the shareholders of the limited liability company should In the course of the process, the right judicial idea is established and the burden of proof is reasonably distributed, so as to realize the stability of the company and pursue the safety and efficiency of the transaction. The value orientation of the limited liability company is based on a real case handled by the author, from the legal analysis of the identity of the shareholders of the limited liability company, and the identification of the limited liability company. The principle of the identity of the shareholders, the evidence of the identification of the shareholders of the limited liability company and the conflict of evidence in the process of the identification of the shareholders of the limited liability company are set forth in this paper, This paper makes an analysis on the identification of the shareholder status of the limited liability company in the practice, and finally, based on the discussion of the principle, the rule and so on of the shareholders' identity of the limited liability company, the paper discusses the actual situation of the shareholders' identity of the limited liability company. The way to deal with the case is to open a way to identify the shareholders of the limited liability company in practice
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
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