论文部分内容阅读
现代各国公司法均从实体和程序上规定了公司登记注册的条件,但实践中已获注册登记但不具备或不完全具备法定设立要件的公司却屡见不鲜,这种公司被称为瑕疵公司。所谓瑕疵,包括股东瑕疵、出资瑕疵和目的瑕疵,属于公司设立者或设立参与者行为的瑕疵。各国公司法均承认瑕疵公司独立的法人人格,同时又规定了对瑕疵公司的责任追究制度。在我国,瑕疵公司是否具有法人资格,对其瑕疵如何予以规制,在理论与审判实践中多有争议。一、各国处理瑕疵公司的基本原则有观点认为,瑕疵公司是否具有法人人格,各国立法可分为三类:一是瑕疵设立有效,以英美法系国家为代表;二是瑕疵设立无效,公司的股东或者其他利害关系人可以提起无效诉讼,以大陆法系国家如德国、日本、韩国等为代表;三是对公司瑕疵
It is not uncommon for companies in modern countries to define the conditions for the registration of a company physically and procedurally. However, companies that have been registered in practice but do not have or have the full set of statutory requirements are not uncommon. Such companies are called defective companies. The so-called flaws, including shareholder flaws, funding flaws and purpose flaws, belong to the founder of the company or set up a participant in the flaw. The corporate law of each country admits the independent corporate personality of the defective company, and at the same time, stipulates the system of accountability for the defective company. In our country, whether a defective company has a legal person status and how to regulate its flaws is much controversial in theory and trial practice. First, the basic principles of dealing with defective companies in various countries Have the view that the defective companies have legal personality, national legislation can be divided into three categories: First, the establishment of effective flaws, to the Anglo-American legal system as the representative of the country; Second, the establishment of flaws invalid, the company’s Shareholders or other interested parties can bring invalid proceedings, to civil law countries such as Germany, Japan, South Korea as the representative; Third, the company flaws