我國公司設(shè)立瑕疵的救濟(jì)途徑
發(fā)布時(shí)間：2018-07-29 08:24
【摘要】：公司作為現(xiàn)代市場經(jīng)濟(jì)中的個(gè)體,扮演著十分重要的角色。但是在公司設(shè)立過程中,可能存在著一些問題,從而導(dǎo)致公司設(shè)立無效,我們將這種行為稱為公司設(shè)立瑕疵。公司設(shè)立瑕疵是指公司雖已經(jīng)依法設(shè)立,于登記機(jī)關(guān)登記并取得了營業(yè)執(zhí)照,但是存在著一些事實(shí),這些事實(shí)導(dǎo)致公司不符合本國法律上公司設(shè)立的某些條件,從而導(dǎo)致公司在某些方面存在缺陷的情況。對(duì)于公司設(shè)立瑕疵問題的討論,本文從理論背景和現(xiàn)實(shí)問題出發(fā),通過對(duì)論題概念以及范圍的界定,從而展開論述。首先,我國當(dāng)前關(guān)于公司設(shè)立瑕疵問題的處理,存在著許多問題。經(jīng)由學(xué)術(shù)理論界多年來的爭論,主要分為兩大派系,即否定說與肯定說,在分析了上述兩大派系的理論主張之后,筆者發(fā)現(xiàn),我國當(dāng)前的理論研究主要圍繞在如何撤銷以及如何處理公司設(shè)立瑕疵問題,而卻忽視了關(guān)于瑕疵公司的救濟(jì)問題。由此,應(yīng)當(dāng)在處理公司設(shè)立瑕疵問題的同時(shí),在一定程度上注重對(duì)瑕疵公司的救濟(jì),將注意力集中在救濟(jì)途徑上。通過對(duì)國外立法的考察,我們發(fā)現(xiàn)當(dāng)今世界主要以三種模式來處理公司設(shè)立瑕疵問題,即行政撤銷模式、司法救濟(jì)模式以及商會(huì)救濟(jì)模式。通過對(duì)這三種模式各自特點(diǎn)的比較,筆者注意到在構(gòu)建設(shè)立瑕疵處理途徑時(shí),應(yīng)當(dāng)同時(shí)兼顧效率和安全。而通過對(duì)這三大模式的比較,最終得出了在我國應(yīng)當(dāng)適用以司法救濟(jì)途徑為原則,吸收其他模式優(yōu)勢(shì)的方式來處理公司設(shè)立瑕疵問題的結(jié)論。在對(duì)瑕疵進(jìn)行合理分類,并劃定訴訟主體的范圍之后。結(jié)合各種救濟(jì)途徑的優(yōu)勢(shì),筆者提出了在我國建立公司設(shè)立瑕疵救濟(jì)之訴的構(gòu)想,即在前置程序先行處理的情況下,將具有不同瑕疵類型的公司進(jìn)行了分類,制度上進(jìn)行了分流處理,在保證安全的同時(shí),又兼顧了效率,從而維護(hù)了正常的市場交易秩序。
[Abstract]:The company, as an individual in the modern market economy, plays a very important role. However, there may exist some problems in the process of establishing a company, which leads to the invalidation of the establishment of the company. We call this behavior a defect in the establishment of a company. A defect in the establishment of a company refers to the fact that, although the company has been established according to law, registered with the registration authority and obtained a business license, there are some facts which lead to the fact that the company does not meet certain conditions for the establishment of a company under the laws of the country. This leads to the existence of defects in certain aspects of the company. For the discussion of the problem of the defect of the company's establishment, this paper starts from the theoretical background and the practical problem, through the definition of the concept and scope of the topic, and then begins to discuss. First of all, there are many problems in dealing with the defect of company establishment in our country. After years of controversy in the academic theorists, there are mainly two major factions, namely, the theory of negation and the theory of affirmation. After analyzing the theoretical claims of the two factions, the author finds that, The current theoretical research focuses on how to cancel and how to deal with the defect of the company, but neglects the remedy of the defective company. Therefore, we should pay attention to the remedy of the defective company to a certain extent, and pay attention to the remedy way while dealing with the problem of the defect in the company. Through the investigation of foreign legislation, we find that there are mainly three models to deal with the defect of company establishment in the world today, namely, administrative revocation model, judicial remedy model and chamber of commerce relief model. By comparing the characteristics of the three models, the author points out that the efficiency and safety should be taken into account in the construction of the way to deal with defects. Through the comparison of these three models, the conclusion that we should apply the principle of judicial remedy and absorb the advantages of other models to deal with the problem of the defect of the company is finally reached in our country. After a reasonable classification of defects and the delineation of the scope of the main body of litigation. Combined with the advantages of various relief approaches, the author puts forward the idea of establishing a defect remedy suit in China, that is, the companies with different defect types are classified under the condition that the pre-procedure is dealt with first. In order to maintain the normal order of market transaction, the system carries on the diversion treatment, at the same time guarantees the safety, also takes into account the efficiency.
【學(xué)位授予單位】：天津商業(yè)大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2015
【分類號(hào)】：D922.291.91
[Abstract]:The company, as an individual in the modern market economy, plays a very important role. However, there may exist some problems in the process of establishing a company, which leads to the invalidation of the establishment of the company. We call this behavior a defect in the establishment of a company. A defect in the establishment of a company refers to the fact that, although the company has been established according to law, registered with the registration authority and obtained a business license, there are some facts which lead to the fact that the company does not meet certain conditions for the establishment of a company under the laws of the country. This leads to the existence of defects in certain aspects of the company. For the discussion of the problem of the defect of the company's establishment, this paper starts from the theoretical background and the practical problem, through the definition of the concept and scope of the topic, and then begins to discuss. First of all, there are many problems in dealing with the defect of company establishment in our country. After years of controversy in the academic theorists, there are mainly two major factions, namely, the theory of negation and the theory of affirmation. After analyzing the theoretical claims of the two factions, the author finds that, The current theoretical research focuses on how to cancel and how to deal with the defect of the company, but neglects the remedy of the defective company. Therefore, we should pay attention to the remedy of the defective company to a certain extent, and pay attention to the remedy way while dealing with the problem of the defect in the company. Through the investigation of foreign legislation, we find that there are mainly three models to deal with the defect of company establishment in the world today, namely, administrative revocation model, judicial remedy model and chamber of commerce relief model. By comparing the characteristics of the three models, the author points out that the efficiency and safety should be taken into account in the construction of the way to deal with defects. Through the comparison of these three models, the conclusion that we should apply the principle of judicial remedy and absorb the advantages of other models to deal with the problem of the defect of the company is finally reached in our country. After a reasonable classification of defects and the delineation of the scope of the main body of litigation. Combined with the advantages of various relief approaches, the author puts forward the idea of establishing a defect remedy suit in China, that is, the companies with different defect types are classified under the condition that the pre-procedure is dealt with first. In order to maintain the normal order of market transaction, the system carries on the diversion treatment, at the same time guarantees the safety, also takes into account the efficiency.
【學(xué)位授予單位】：天津商業(yè)大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2015
【分類號(hào)】：D922.291.91
【參考文獻(xiàn)】
相關(guān)期刊論文 前7條
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2 孫效敏;翁孫哲;;公司瑕疵設(shè)立救濟(jì)機(jī)制選擇的法經(jīng)濟(jì)分析[J];法學(xué)家;2007年03期
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