问题 问答题 简答题

股东违反出资义务的表现形式及其法律后果是什么?

答案

参考答案:

按行为方式不同,股东违反出资义务的行为可表现为完全不履行、未完全履行和不适当履行三种形式。

法律后果:

(1)股东权利。权利与义务的统一、利益与风险的一致是民商法永恒的原则和精髓,股东违反出资义务,当然也就不应享有股东的相应权利,未向公司进行任何出资,而承认其按约定的出资比例享有公司事务管理权和公司盈余分配权,将是不可思议的。从公司运营的机制来说,公司经营活动是以其资本作为基本物质条件和经营手段,而资本的来源正是股东的出资,公司的经营活动实质上是对股东投资的支配,公司的经营收益实质是股东出资财产带来的收益,其结果当然归属实际的出资者。因此,就管理权和分配权而言,股东只能就其出资部分主张权利,对其未出资的部分,即使追补了出资,也只能对此后的公司管理和公司盈余主张权利。

(2)股东义务与责任。未出资的股东虽不享有相应权利,但却不能免除股东应承担的义务和责任。出资义务非以具体的股东权利为对价,它产生于公司设立协议的约定和公司法以及公司章程的规定。在公司设立过程中,它属于合同义务,在公司成立后,则成为法定义务。任何股东在未实际出资之前,此种义务都不能免除。违反此项义务,即产生相应的法律责任,包括对已足额交纳出资股东的违约责任和对公司债权人出资额范围内的债务清偿责任,后者恰是股东有限责任制度的实质内容。我国司法文件对出资不到位的民事责任多有规定,从早先主管部门审核不当的责任,到后来开办单位的出资证明责任,再到目前普遍适用的注册资本虚假责任,实质都属于违反出资义务的民事责任。

(3)股东资格与地位。在公司法著述中,股东常被定义为公司的出资人,严格地说,股东是负有出资义务的人,但却不一定是已实际出资的人。股东未履行出资义务,并不改变其已有的股东资格,这种资格取决于公司章程和股东名册的记载,更重要的则是工商行政部门注册登记的确认,这些文件不能证明该股东已履行出资义务,但却是证明其资格的基本依据。否认了未出资股东的股东资格,就等于否定了其与公司之间的任何法律联系,对其出资责任的追究也就失去了根据。实践中,当事人对不享权利但却背负义务的结局不得其解、难以接受的逻辑矛盾即在此。

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Everyone needs friends. We all like to feel close to someone. It is nice to have a friend to talk, laugh and do things with. Surely, there are times when we need to be alone. We don't always want people around. But we would feel lonely if we never had a friend.

No two people are the same. Sometimes friends don't get along well, which doesn't mean that they no longer like each other. Most of the time they will go on being friends. Sometimes friends move away, then we feel very sad. We miss them much, but we can call them and write to them. Maybe we would never see them again, and we can make new friends. It is surprising to find out how much we like new people when we get to know them. Families sometimes name their children after a close friend. Many places are named after men and women, if they are friendly to people in a town. Some libraries are named this way. So are some schools. We think of these people when we go to these places.

There's more good news for people, if they have friends. These people live longer than those people if those don't have friends. Why? It could be that they are happier. Being happy helps you stay well. Or it could be just knowing that someone cares, if someone cares about you, you take better care of yourself.

小题1:The first paragraph tells us __________.

A.none needs friends

B.we always need friends around us

C.making friends is the need in people's life

D.we need to be alone小题2:Which of the following is what the writer doesn't say in the passage?

A.People are happy when their friends leave them.

B.People may never see their friends after their friends move away.

C.Everyone needs friends.

D.People like their friends very much if they get to know them.小题3: If people have friends, they would live longer, because __________.

A.they feel happier and healthier

B.they get a lot of help from their friends

C.they take better care of themselves

D.both A and C小题4:This passage tells us __________.

A.that people are all friends

B.that people need friends

C.how to get to know friends

D.how to name a place