论企业集团从属公司债权人的法律保护
发布时间：2018-10-08 15:10
【摘要】：在当今社会,企业的功能已不再由单一公司来完成,取而代之的是由众多不同形式的企业组成的企业集团。据统计,目前全世界共有44000个跨国公司的母公司和28万个在国外形成的从属企业,他们控制了全世界1/3的生产,掌握了全世界70%的对外直接投资,2/3的世界贸易和75%以上的专利与技术转让。与此同时,企业集团的出现也给现行法律带来了巨大的挑战,这种挑战是全方位的,它不仅涉及到公司法对企业集团的调整问题,而且涉及到证券法、税法、劳动法以及反垄断法等。本文仅在公司法领域探讨企业集团从属公司债权人保护问题。 传统公司法以单个独立实体公司为规范对象,以公司的独立人格和股东有限责任为构建基础,以公司资本维持原则、公司事务公开原则和公司清算规则为债权人保护方式,从而建立了单纯明确的股东、公司及债权人的角色与利益关系。然而企业集团的出现打破了这种田园诗般的格局,传统的债权人保护方式已不能满足发展了的经济现实。企业集团是多个企业的联合,联合的基础则是一公司(控制公司)通过转投资、人事连锁或控制合同控制他公司(从属公司)的经营决策权,并基于控制实现自身利益或特定战略目标。较之与单一公司,从属公司债权人显然面临着由于“控制”带来的额外风险,从属公司法律上的独立人格在经济现实中可能完全丧失,公司也不再以自身利益最大化为原则,而被当作实现集团利益或控制公司利益的工具。在错综复杂的集团内部,控制公司利用转投资、关联交易及资产转移等方式逃避债务,危害债权人利益的事时有发生,而作为外部人的债权人对此情形很难发现或者需要付出高额调查成本,因此,对企业集团内从属公司债权人予以特殊保护,在鼓励企业集中,发挥企业集团规模经济效应的同时规范之实属必要。 企业集团从属公司债权人保护问题已引起世界各国的注意,而对企业集团的成员资格各国规定却不一致,有规定其成员必须为公司组织者(如我国台湾),有将成员资格扩充到自然人,甚至国家者(如德国)。但鉴于我国公司法的规定和探讨方便,本文将企业集团成员仅局限于股份有限公司和有限责任公司,并在此基础上讨论从属公司债权人保护问题,这也符
[Abstract]:In today's society, the functions of enterprises are no longer done by a single company, but by a large number of different forms of enterprise groups. According to statistics, there are currently 44000 parent companies of multinational corporations and 280000 affiliated enterprises formed abroad, which control one-third of the world's production. Master 70% of the world's foreign direct investment (OFDI) 2 / 3 of world trade and more than 75% of patent and technology transfer. At the same time, the emergence of enterprise groups has also brought great challenges to the existing laws. This kind of challenge is all-around. It involves not only the adjustment of corporate law to enterprise groups, but also the securities law and tax law. Labor law and anti-monopoly law. This paper only discusses the protection of creditors of subordinate companies of enterprise groups in the field of company law. The traditional company law takes the individual independent entity company as the norm object, takes the independent personality and the shareholder limited liability as the foundation, takes the company capital maintenance principle, the company affairs open principle and the company liquidation rule as the creditor protection way, takes the company capital maintenance principle, the company affairs disclosure principle and the company liquidation rule as the creditor protection way. Thus, the role and interests of shareholders, companies and creditors are established. However, the emergence of enterprise groups has broken this idyllic pattern, the traditional creditor protection can not meet the developed economic reality. An enterprise group is a union of several enterprises, the basis of which is that a company (a controlling company) controls the operation and decision making of a company (a subordinate company) through a transfer of investment, a personnel chain, or a control contract. And based on control to achieve their own interests or specific strategic objectives. Compared with a single company, subordinated company creditors obviously face additional risks due to "control", the legal independence of subordinate company may be completely lost in economic reality, and the company no longer takes the principle of maximization of its own interests as the principle. It is used as a tool to realize the interests of the group or to control the interests of the company. Within a complex group, controlling companies to evade debt by means of transfer of investments, related party transactions, and asset transfers, and so on, have occurred from time to time, endangering the interests of creditors. Creditors, as outsiders, are hard to spot or have to pay high investigation costs. Therefore, special protection is given to the creditors of subordinate companies in the enterprise group, which encourages the concentration of enterprises. It is necessary to bring into play the economies of scale effect of enterprise groups and to standardize them at the same time. The issue of the protection of creditors of corporations affiliated to enterprise groups has attracted the attention of countries all over the world, while the provisions on membership of enterprise groups are inconsistent among countries, It is stipulated that its members must be corporate organizers (as in Taiwan), and that membership should be extended to natural persons and even countries (such as Germany). However, in view of the convenience of the company law in China, this paper limits the members of enterprise groups to joint stock limited companies and limited liability companies, and on this basis discusses the protection of creditors of subordinate companies.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D912.29;D913
本文编号：2257234
[Abstract]:In today's society, the functions of enterprises are no longer done by a single company, but by a large number of different forms of enterprise groups. According to statistics, there are currently 44000 parent companies of multinational corporations and 280000 affiliated enterprises formed abroad, which control one-third of the world's production. Master 70% of the world's foreign direct investment (OFDI) 2 / 3 of world trade and more than 75% of patent and technology transfer. At the same time, the emergence of enterprise groups has also brought great challenges to the existing laws. This kind of challenge is all-around. It involves not only the adjustment of corporate law to enterprise groups, but also the securities law and tax law. Labor law and anti-monopoly law. This paper only discusses the protection of creditors of subordinate companies of enterprise groups in the field of company law. The traditional company law takes the individual independent entity company as the norm object, takes the independent personality and the shareholder limited liability as the foundation, takes the company capital maintenance principle, the company affairs open principle and the company liquidation rule as the creditor protection way, takes the company capital maintenance principle, the company affairs disclosure principle and the company liquidation rule as the creditor protection way. Thus, the role and interests of shareholders, companies and creditors are established. However, the emergence of enterprise groups has broken this idyllic pattern, the traditional creditor protection can not meet the developed economic reality. An enterprise group is a union of several enterprises, the basis of which is that a company (a controlling company) controls the operation and decision making of a company (a subordinate company) through a transfer of investment, a personnel chain, or a control contract. And based on control to achieve their own interests or specific strategic objectives. Compared with a single company, subordinated company creditors obviously face additional risks due to "control", the legal independence of subordinate company may be completely lost in economic reality, and the company no longer takes the principle of maximization of its own interests as the principle. It is used as a tool to realize the interests of the group or to control the interests of the company. Within a complex group, controlling companies to evade debt by means of transfer of investments, related party transactions, and asset transfers, and so on, have occurred from time to time, endangering the interests of creditors. Creditors, as outsiders, are hard to spot or have to pay high investigation costs. Therefore, special protection is given to the creditors of subordinate companies in the enterprise group, which encourages the concentration of enterprises. It is necessary to bring into play the economies of scale effect of enterprise groups and to standardize them at the same time. The issue of the protection of creditors of corporations affiliated to enterprise groups has attracted the attention of countries all over the world, while the provisions on membership of enterprise groups are inconsistent among countries, It is stipulated that its members must be corporate organizers (as in Taiwan), and that membership should be extended to natural persons and even countries (such as Germany). However, in view of the convenience of the company law in China, this paper limits the members of enterprise groups to joint stock limited companies and limited liability companies, and on this basis discusses the protection of creditors of subordinate companies.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D912.29;D913
【引证文献】
相关硕士学位论文 前3条
1 刘庆连;民营企业集团财务控制体系建设研究[D];河北工程大学;2011年
2 张存洁;“深石原则”法律适用研究[D];苏州大学;2011年
3 贺峰;论公司集团中深石原则的运用[D];中国政法大学;2006年
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