论股东抽逃出资及其民事责任
发布时间：2019-03-24 10:45
【摘要】：出资是股东最基本的义务。在当今生活中,股东违反出资义务抽逃出资的现象时有发生。抽逃出资行为违反了资本维持原则,极大地影响了公司的正常运营和商业信誉,损害了公司及其他股东的利益,不可避免地对公司债权人造成侵害,进而对市场交易安全构成威胁。因股东抽逃出资引起的民事纠纷层出不穷。我国现行公司法律制度正面临前所未有的考验。不可否认的是,现行《公司法》在抽逃出资的责任体系方面依然存在“重刑事、行政,轻民事”的失衡现象,导致实践中受侵害的公司及其他股东、公司债权人以及其他利害关系人难以更好地运用民事诉讼对自己所受损害进行救济。因此,本文结合相关法律、法规和司法解释从股东抽逃出资承担的民事责任的角度进行论述,并提出相应的建议。本文第一章是对抽逃出资行为的概述。解释了股东抽逃出资的含义及构成要件,并介绍了股东抽逃出资的主要形式和认定以及与相关情形的区分。第二章是本文的核心部分,对股东抽逃出资承担的民事责任进行阐述。以基本理论为依托,从责任性质出发论述了抽逃出资股东对公司及其债权人的侵权责任、对足额出资股东的违约责任,并提出损害赔偿、股东代表诉讼、违约之诉、限制股东权利、公司债权人行使代位权、法人格否认之诉等相应的救济途径。第三章针对我国现有法律框架下的相关规定以及现行公司法存在的问题,就抽逃出资民事责任体系的构建,从责任方式、责任主体、归责原则、举证责任、诉讼时效等方面提出完善建议,并对股东代表诉讼、股东权利的限制、公司债权人的代位权、法人格否认等几种特殊救济途径进行逐一阐明。
[Abstract]:Capital contribution is the most basic obligation of shareholders. In today's life, the phenomenon that shareholders break the obligation of capital contribution escape from time to time. The evasion of capital contribution violates the principle of capital maintenance, greatly affects the normal operation and commercial reputation of the company, damages the interests of the company and other shareholders, and inevitably infringes on the creditors of the company. Furthermore, it poses a threat to the security of market transactions. Civil disputes arising from shareholders' withdrawal of capital contributions emerge one after another. China's current corporate legal system is facing an unprecedented test. It is undeniable that the current Company Law still has the imbalance phenomenon of "attaching importance to criminal, administrative, and neglecting civil" in terms of the liability system of evading capital contribution, which leads to the infringement of companies and other shareholders in practice. It is difficult for corporate creditors and other interested parties to make better use of civil action to remedy their damages. Therefore, combining with the relevant laws, regulations and judicial interpretation, this paper discusses the civil liability of shareholders from the angle of evading capital contribution, and puts forward some corresponding suggestions. The first chapter of this paper is an overview of the behavior of evading capital contributions. This paper explains the meaning and constituent elements of shareholder's evading capital contribution, and introduces the main forms and cognizance of shareholders' evading capital contribution and the distinction with related circumstances. The second chapter is the core part of this paper, which expounds the civil liability of shareholders to evade capital contribution. Based on the basic theory, this paper discusses the tort liability of the evading shareholder of capital contribution to the company and its creditors from the nature of liability, the liability for breach of contract of the shareholder of full contribution, and puts forward the compensation for damage, the action of shareholder's representative, and the action of breach of contract. To limit shareholders' rights, corporate creditors to exercise subrogation rights, legal personality denial of litigation and other corresponding relief ways. The third chapter aims at the relevant provisions under the existing legal framework and the problems existing in the current company law, on the construction of the civil liability system of evading capital contribution, from the mode of responsibility, the subject of responsibility, the principle of imputation, the burden of proof, and so on. Some suggestions on the perfection of the limitation of action are put forward, and several special relief ways, such as shareholders' representative action, restriction of shareholders' rights, subrogation rights of corporate creditors, denial of legal personality and so on, are expounded one by one.
【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：2446248
[Abstract]:Capital contribution is the most basic obligation of shareholders. In today's life, the phenomenon that shareholders break the obligation of capital contribution escape from time to time. The evasion of capital contribution violates the principle of capital maintenance, greatly affects the normal operation and commercial reputation of the company, damages the interests of the company and other shareholders, and inevitably infringes on the creditors of the company. Furthermore, it poses a threat to the security of market transactions. Civil disputes arising from shareholders' withdrawal of capital contributions emerge one after another. China's current corporate legal system is facing an unprecedented test. It is undeniable that the current Company Law still has the imbalance phenomenon of "attaching importance to criminal, administrative, and neglecting civil" in terms of the liability system of evading capital contribution, which leads to the infringement of companies and other shareholders in practice. It is difficult for corporate creditors and other interested parties to make better use of civil action to remedy their damages. Therefore, combining with the relevant laws, regulations and judicial interpretation, this paper discusses the civil liability of shareholders from the angle of evading capital contribution, and puts forward some corresponding suggestions. The first chapter of this paper is an overview of the behavior of evading capital contributions. This paper explains the meaning and constituent elements of shareholder's evading capital contribution, and introduces the main forms and cognizance of shareholders' evading capital contribution and the distinction with related circumstances. The second chapter is the core part of this paper, which expounds the civil liability of shareholders to evade capital contribution. Based on the basic theory, this paper discusses the tort liability of the evading shareholder of capital contribution to the company and its creditors from the nature of liability, the liability for breach of contract of the shareholder of full contribution, and puts forward the compensation for damage, the action of shareholder's representative, and the action of breach of contract. To limit shareholders' rights, corporate creditors to exercise subrogation rights, legal personality denial of litigation and other corresponding relief ways. The third chapter aims at the relevant provisions under the existing legal framework and the problems existing in the current company law, on the construction of the civil liability system of evading capital contribution, from the mode of responsibility, the subject of responsibility, the principle of imputation, the burden of proof, and so on. Some suggestions on the perfection of the limitation of action are put forward, and several special relief ways, such as shareholders' representative action, restriction of shareholders' rights, subrogation rights of corporate creditors, denial of legal personality and so on, are expounded one by one.
【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】
相关硕士学位论文 前1条
1 马凌洁;有限责任公司股东抽逃出资民事责任研究[D];华东政法大学;2012年
，本文编号：2446248
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