有限责任公司股权继承若干法律问题研究

发布时间：2019-07-08 19:38

【摘要】：有限责任公司的股权继承问题在我国的《中华人民共和国公司法》(以下简称《公司法》)中虽有初步的规范,但是立法上的规定太过单薄,面对实践中矛盾日益突出的股权继承纠纷已然不够。本文主要分为以下四部分:第一章,通过对股权的概念以及它的性质的论述,笔者表述了对于股权概念广义和狭义两种角度的理解。介绍了股权性质的多种观点,通过对比和分析得出股权是一种全新的独立的民事权利类型。有限责任公司股权继承有一定的特殊性,股权中的共益权具有人身属性,使其区别于一般财产的继承,但是股权的本质——财产性权利,没有被改变。所以其依然满足成为继承的客体的要求。有限责任公司的股权继承问题处于《公司法》和《中华人民共和国继承法》(以下简称《继承法》)的交叉领域,必须从两部法律的角度来考虑。有限责任公司具有人合性,为了保护人合性公司排斥陌生的继承人成为公司股东,但是人合性也并不是绝对的,有限责任公司还有资合性,人合性并不能动摇股权的可继承性,如何达到有限责任公司人合性和继承人继承权之间的平衡是此问题的核心。股权继承并不属于股权转让的一种,股权继承有自己的特点,但因二者又有一定的共性,股权转让中的某些规定可以借鉴到股权继承问题的解决中。第二章,介绍了我国的有限责任公司股权继承问题在立法上的的相关规定,主要包括《公司法》及其司法解释、《继承法》、《中华人民共和国婚姻法》(以下简称《婚姻法》)及其司法解释。之后分析了我国有限责任公司股权继承法律问题存在的以下缺陷,笔者仅提出了四个方面的问题,第一个问题继承的客体和范围。立法上使用"股东资格"的字眼是否恰当,股权作为一个整体是否都可以被继承。第二个问题公司章程对股权继承的限制。公司章程是公司的自治性文件,相当于公司的"宪法",是唯一一个有权对股权继承作出限制的文件,但是立法对于公司章程可以进行限制的程度没有任何规定是不合适的,可能会造成公司以维护人合性的名义过度侵害继承人的继承权。第三个问题股权悬置期间的行使与继承。股权悬置期间最早是在股权转让制度中被提出的,股权继承中同样存在悬置期间,而我国立法对此问题几乎没有任何规定,由此导致这段期间的混乱状态以及各方当事人的利益很难得到有效的保护。第四个问题多人继承或无人继承时股权的处理。当出现多人继承时面临股权的分割或共有的问题,分割的标准是什么,共有股权时如何行使。当无人继承时,根据《继承法》的规定股权由国家或集体组织继承,这种的处理是否合理,如若不合理又该如何解决。第三章,介绍了大陆法系和英美法系各两个主要国家在公司股权继承问题立法上的相关规定。大陆法系介绍了德国和日本的公司立法,英美法系介绍了美国和英国的公司立法。各国都普遍认可了股权可以继承,但是在取得股权的具体程序上又有所不同。立法明确的规定了继承人取得股权前需要满足的条件或程序。或者赋予公司章程一定的权利,由其对股权继承作出优先适用的限制性规定,而后才能取得股权。第四章,针对第二章中我国有限责任公司股权继承存在的问题,笔者提出了完善的建议。第一,明确继承的客体是股权以及股权继承的具体范围。对股权与股东资格进行对比,二者一样是股东对公司享有的权利的描述,但是股东资格更注重的是身份的表达,所以继承的客体应是股权而不是股东资格。股权中的自益权和共益权都可以属于继承的范围。第二,从内容上和效力上对公司章程能够对股权继承作出的限制性程度进行了论述。在效力上,章程关于禁止和限制股权的继承的条款都是有效的。在内容上,章程只能限制共益权。公司章程限制的程度就是对人合性保护的程度,同时要尊重死亡股东生前对自己财产的处分权。当章程排除了股权继承后,股权的归属应先由其他股东购买,当无人购买时,由继承人选择向第三人转让或请求公司回购。第三,参考股权转让的规定,明确继承人在继承股权之前必须经过一定的程序,被记载于股东名册时取得股权。完善悬置期间继承人和公司的权利和义务,继承人有义务通知公司确定的继承人,公司有义务在合理期间给出答复并为继承人办理相关手续,赋予各方当事人以向法院起诉的方式行使异议权。第四,当多人继承时,允许股权的分割,前提是继承人对分割协议达成一致意见,否则由继承人共有股权,选出一名代表继承股权,其行为对所有继承人有效。当股东人数超过50人时,立法应允许其作为有限责任公司的例外存在。当无人继承时,由国家继承由股权转化后的财产性利益,而不是成为公司股东。造成股东人数不足2人时,令公司限期作出调整,否则必须变更为一人有限公司。
[Abstract]:The problem of the equity inheritance of the limited liability company has the preliminary specification in the Company Law of the People's Republic of China (hereinafter referred to as the Company Law>), but the provisions in the legislation are too thin, and in the face of the contradiction of the practice, the problem of equity inheritance is not enough. This paper is divided into four parts: the first chapter, through the discussion of the concept of equity and its nature, the author expresses the understanding of the broad and narrow sense of the equity concept. This paper introduces a variety of opinions on the nature of the equity, and through the comparison and analysis, it is a brand-new independent civil right type. The equity inheritance of the limited liability company has a certain particularity, the common interest in the equity has the property of the person, which makes it different from the inheritance of the general property, but the essence of the stock right is the property right, and has not been changed. It still meets the requirement to be the object of the succession. The problem of equity inheritance of the limited liability company is in the cross-cutting area of the Company Law> and the Succession Law of the People's Republic of China (hereinafter referred to as the Succession Law>), and must be considered from the angle of the two laws. The limited liability company has the heterozygosity, in order to protect the company of the company to exclude the strange successor as the company's shareholder, but the heterozygosity is not absolute, the limited liability company also has the heterozygosity, the heterozygosity is not to shake the inheritability of the stock right, How to achieve the balance between the heterozygosity and the inheritance rights of the limited liability company is the core of this problem. The equity inheritance is not a kind of equity transfer, and the equity inheritance has its own characteristics, but because both of them have some common characteristics, some of the provisions in the equity transfer can be used for reference to the settlement of the problem of equity inheritance. In the second chapter, the relevant provisions of the problem of the equity inheritance of the limited liability company in China are introduced, including the Company Law and its judicial interpretation, the Law on Succession and the Marriage Law of the People's Republic of China (hereinafter referred to as the Marriage Law of the People's Republic of China) and its judicial interpretation. After the analysis of the following defects in the legal problem of the equity inheritance of our limited liability company, the author only puts forward four aspects, the object and scope of the first question. The right to use the "shareholder's qualification" in legislation is whether the equity can be inherited as a whole. The second question of the company's articles of association is limited to the succession of the equity. The company's articles of association are the self-governing documents of the company, corresponding to the "constitution" of the company, the only document entitled to limit the succession of the stock right, but the extent to which the legislation can be limited by the articles of association is not appropriate, It may cause the company to overdo the inheritance of the successor in the name of the maintenance of the heterozygosity. The exercise and succession of the third question during the suspension of the equity. During the period of stock-stock suspension, the first was put forward in the system of equity transfer. In the same time, there was no provision in the legislation of our country, which caused the mixed state of the period and the interests of the parties to be effectively protected. The fourth question is the handling of an equity in succession or in the absence of an inheritance. When more than one person is in succession, it is faced with the split or common problems of the equity, what is the standard of the division, and how to exercise it when there is a common stock right. When no one is in succession, the equity in accordance with the Law on Succession shall be inherited by the State or the collective organization, whether such treatment is reasonable, and if not, how to solve it. The third chapter introduces the relevant provisions of the two major countries in the continental law system and the common law system in the legislation of the company's equity inheritance. The civil law system introduced the company legislation of Germany and Japan, and the common law system introduced the company legislation of the United States and the United Kingdom. All countries have generally accepted that the equity can be inherited, but it is different in the specific procedures for the acquisition of equity. The legislation clearly sets out the conditions or procedures that the heirs need to meet prior to the acquisition of the stock. Or to give a certain right to the company's articles of association, which shall be subject to the restrictive provisions of the priority application to the equity inheritance, before the equity can be obtained. In the fourth chapter, in the second chapter, the author put forward the perfect suggestion for the problem of the equity inheritance of the limited liability company in the second chapter. First, the object of the explicit succession is the specific scope of the equity and the inheritance of the equity. The comparison between the equity and the shareholder's qualification is the description of the shareholder's right to the company, but the shareholder's qualification is more focused on the expression of the identity, so the object to be inherited should be the equity, not the shareholder's qualification. The right of self-interest and the right of co-interest in the equity can be the scope of the succession. Secondly, from the content and effect to the articles of association can make a discussion on the degree of restriction of the succession of the equity. In effect, the articles of association on the prohibition and limitation of the succession of stock rights are valid. In the content, the articles of association can only limit the sharing of rights. The extent to which the company's articles of association is limited is to the degree of the protection of the human being, and at the same time respect the disposition of the death shareholders to their property. When the Articles of Association excludes the succession of the equity, the ownership of the equity shall be purchased by other shareholders, and when no one is purchased, the successor shall choose to transfer to the third person or request the company to buy back. Third, referring to the provisions of the equity transfer, it is clear that the successor must have a certain procedure before the right to inherit the equity and be recorded in the register of the shareholders. To perfect the rights and obligations of the successor and the company during the suspension period, the successor shall be obliged to notify the successor of the company. The company has the obligation to give a reply during the reasonable period and to carry out the relevant formalities for the successor, and to give the parties the right to challenge the manner in which the court is sued. Fourth, when a person inherits, the division of the equity is allowed, provided that the successor has agreed on the division agreement, otherwise the successor has a share of the equity, and a representative is elected to inherit the equity, and the act shall be valid for all the successors. When the number of shareholders exceeds 50, the legislation shall allow it to exist as an exception to the limited liability company. When no one inherits, the state inherits the property benefit from the conversion of the stock, and is not the shareholder of the company. When the number of shareholders is less than 2, the company shall make the adjustment within a time limit, otherwise it shall be changed to one person limited company.
【学位授予单位】：东北财经大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.291.91

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