公司設(shè)立登記瑕疵司法撤銷制度研究
發(fā)布時(shí)間：2018-10-12 10:29
【摘要】：在現(xiàn)代公司法中，公司設(shè)立制度占有很重要的地位，公司的設(shè)立登記是公司設(shè)立的一項(xiàng)很重要的事項(xiàng)。在公司設(shè)立登記的過(guò)程中，有可能會(huì)發(fā)生公司瑕疵設(shè)立問(wèn)題。公司瑕疵設(shè)立會(huì)影響到公司的人格，進(jìn)而影響到公司發(fā)起人或股東、債權(quán)人及其他利害關(guān)系人的權(quán)益。迅速有效地解決公司瑕疵設(shè)立問(wèn)題，對(duì)受到公司瑕疵設(shè)立損害的相關(guān)人員予以公平合理的救濟(jì)，在公司組織的維持和相關(guān)主體利益的維護(hù)之間取得平衡，成為擺在我們面前的突出問(wèn)題。公司設(shè)立登記撤銷是針對(duì)公司瑕疵設(shè)立的一種救濟(jì)措施，主要有行政處理模式與司法處理模式，目前世界兩大法系的大多數(shù)國(guó)家均選擇了司法救濟(jì)模式。英美法系和大陸法系對(duì)公司設(shè)立登記瑕疵采用了不同的法律調(diào)整機(jī)制，英國(guó)取瑕疵設(shè)立原則承認(rèn)主義，美國(guó)為瑕疵設(shè)立區(qū)別否認(rèn)主義，德國(guó)為瑕疵設(shè)立無(wú)效否認(rèn)主義，日本、韓國(guó)則選擇瑕疵設(shè)立區(qū)別否認(rèn)主義，我國(guó)臺(tái)灣地區(qū)則采瑕疵設(shè)立撤銷主義。我國(guó)大陸單一的公司瑕疵設(shè)立行政撤銷制度存在明顯缺陷，登記機(jī)關(guān)處于主導(dǎo)地位，不能很好地保護(hù)私人利益。我國(guó)《公司法》應(yīng)當(dāng)建立公司設(shè)立登記瑕疵司法撤銷制度，尊重契約自由和私人意志，弱化公司登記機(jī)關(guān)的作用和國(guó)家意志，減少國(guó)家對(duì)私人活動(dòng)的干預(yù)。企業(yè)維持是現(xiàn)代企業(yè)制度的基本要求，，大多數(shù)國(guó)家立法貫徹了這一基本原則。我國(guó)《公司法》可以借鑒域外法律并建立公司瑕疵矯正制度，賦予瑕疵設(shè)立公司自我矯正的機(jī)會(huì)，維持公司使公司繼續(xù)有效存在。相關(guān)主體利益遭受損失應(yīng)得到有效地救濟(jì)，行為主體應(yīng)承擔(dān)民事責(zé)任，公司設(shè)立登記瑕疵的民事責(zé)任在于保護(hù)因公司設(shè)立登記瑕疵受到損害的當(dāng)事人的利益。公司設(shè)立登記瑕疵司法撤銷會(huì)消滅公司，公司的登記行為自始無(wú)效，公司的經(jīng)營(yíng)行為應(yīng)視為設(shè)立申請(qǐng)人的合伙行為，設(shè)立申請(qǐng)人依法對(duì)公司的債務(wù)承擔(dān)無(wú)限連帶責(zé)任。第三人與公司之間的法律關(guān)系仍然有效，其因公司瑕疵設(shè)立受到的損失，在不同情況下第三人可以要求不同的主體賠償。公司登記機(jī)關(guān)對(duì)登記申請(qǐng)人和第三人承擔(dān)的民事責(zé)任屬于國(guó)家賠償責(zé)任，其責(zé)任方式以賠償為主，適用限制賠償原則來(lái)確定賠償范圍。
[Abstract]:In the modern company law, the company establishment system occupies a very important position, the company establishment registration is a very important matter of the company establishment. In the process of company establishment registration, there may be defects in the establishment of the company. The defective establishment of the company will affect the personality of the company, and then affect the rights and interests of the promoters or shareholders, creditors and other interested parties. To solve the problem of company defect establishment quickly and effectively, to give fair and reasonable relief to the related personnel who have been damaged by the company defect establishment, and to strike a balance between the maintenance of the company's organization and the maintenance of the interests of the relevant subject. Become a prominent problem in front of us. The cancellation of company establishment registration is a relief measure for the establishment of a company's defects. There are mainly administrative and judicial treatment modes. At present, most countries in the two major legal systems of the world have chosen the judicial remedy mode. Anglo-American law system and civil law system have adopted different legal adjustment mechanism to the company establishment registration flaw, the England takes the flaw establishment principle recognition doctrine, the United States sets up the distinction denial doctrine for the flaw, Germany establishes the invalid denial doctrine for the flaw, Japan, Japan. South Korea chooses defect to establish discriminative denial, and Taiwan adopts defect to set up revocalism. There are obvious defects in the system of administrative revocation of a single company defect in mainland China, and the registration authority is in the dominant position and can not protect private interests very well. The Company Law of our country should establish the judicial revocation system of company registration defects, respect the freedom of contract and private will, weaken the role of the company registration authority and the national will, and reduce the state interference in private activities. Enterprise maintenance is the basic requirement of modern enterprise system. The Company Law of our country can draw lessons from the extraterritorial law and establish the system of correcting the defects of the company, give the opportunity of self-correction to the company of the defective establishment, and maintain the company to make the company continue to exist effectively. The loss of the interests of the relevant subjects should be effectively remedied, the main body of conduct should bear civil liability, and the civil liability of the company's establishment of registration defects lies in the protection of the interests of the parties who have been damaged by the defects of the company's establishment of registration. The judicial revocation of the company's registration defects will destroy the company, and the company's registration behavior is invalid from the beginning. The company's business behavior should be regarded as the establishment of the applicant's partnership act, and the applicant shall bear unlimited joint and several liability for the company's debts according to law. The legal relationship between the third party and the company is still valid, and the third party can claim different compensation under different circumstances because of the loss caused by the defective establishment of the company. The civil liability of the company registration authority to the registration applicant and the third party belongs to the state compensation liability. The main way of its liability is compensation, and the scope of compensation is determined by applying the principle of limiting compensation.
【學(xué)位授予單位】：湖南大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2012
【分類號(hào)】：D922.291.91
本文編號(hào)：2265783
[Abstract]:In the modern company law, the company establishment system occupies a very important position, the company establishment registration is a very important matter of the company establishment. In the process of company establishment registration, there may be defects in the establishment of the company. The defective establishment of the company will affect the personality of the company, and then affect the rights and interests of the promoters or shareholders, creditors and other interested parties. To solve the problem of company defect establishment quickly and effectively, to give fair and reasonable relief to the related personnel who have been damaged by the company defect establishment, and to strike a balance between the maintenance of the company's organization and the maintenance of the interests of the relevant subject. Become a prominent problem in front of us. The cancellation of company establishment registration is a relief measure for the establishment of a company's defects. There are mainly administrative and judicial treatment modes. At present, most countries in the two major legal systems of the world have chosen the judicial remedy mode. Anglo-American law system and civil law system have adopted different legal adjustment mechanism to the company establishment registration flaw, the England takes the flaw establishment principle recognition doctrine, the United States sets up the distinction denial doctrine for the flaw, Germany establishes the invalid denial doctrine for the flaw, Japan, Japan. South Korea chooses defect to establish discriminative denial, and Taiwan adopts defect to set up revocalism. There are obvious defects in the system of administrative revocation of a single company defect in mainland China, and the registration authority is in the dominant position and can not protect private interests very well. The Company Law of our country should establish the judicial revocation system of company registration defects, respect the freedom of contract and private will, weaken the role of the company registration authority and the national will, and reduce the state interference in private activities. Enterprise maintenance is the basic requirement of modern enterprise system. The Company Law of our country can draw lessons from the extraterritorial law and establish the system of correcting the defects of the company, give the opportunity of self-correction to the company of the defective establishment, and maintain the company to make the company continue to exist effectively. The loss of the interests of the relevant subjects should be effectively remedied, the main body of conduct should bear civil liability, and the civil liability of the company's establishment of registration defects lies in the protection of the interests of the parties who have been damaged by the defects of the company's establishment of registration. The judicial revocation of the company's registration defects will destroy the company, and the company's registration behavior is invalid from the beginning. The company's business behavior should be regarded as the establishment of the applicant's partnership act, and the applicant shall bear unlimited joint and several liability for the company's debts according to law. The legal relationship between the third party and the company is still valid, and the third party can claim different compensation under different circumstances because of the loss caused by the defective establishment of the company. The civil liability of the company registration authority to the registration applicant and the third party belongs to the state compensation liability. The main way of its liability is compensation, and the scope of compensation is determined by applying the principle of limiting compensation.
【學(xué)位授予單位】：湖南大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2012
【分類號(hào)】：D922.291.91
【引證文獻(xiàn)】
相關(guān)博士學(xué)位論文 前1條
1 賴武;公司僵局論[D];吉林大學(xué);2009年
本文編號(hào)：2265783
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