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題 名 | 一人公司法理上之爭議=A Jurisprudential Issues Regarding One Man Company |
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作 者 | 趙德樞; | 書刊名 | 政大法學評論 |
卷 期 | 71 2002.09[民91.09] |
頁 次 | 頁131-184 |
分類號 | 587.2 |
關鍵詞 | 一人公司; 實質一人公司; 形式一人公司; 股東; 法人; 社團; 發起人; 法人組織; 董事會; 過戶登記; 股份自由轉讓性; One man company; Real one man company; Formal one man company; Shareholder; Artificial person; Association; Promoter; Incorporate; Board of directors; Registration of transfers; The free transferability of shares; |
語 文 | 中文(Chinese) |
中文摘要 | 一人公司(one man company)制度自一九二五年為列支登斯敦(Leichtentein)率先立法認以來,有關該類公司之屬性究竟能否歸類為傳統社團法人?在學理上即不斷引起極大之爭議。因依傳統理論公司之所以取得法人資格,不是由於契約關係即係契約關係即係由複數股東組成社團所致。唯不論為何者,其間之關係人均必須為多數,否則無法取得法人資格。而今一人公司應市場實際須要誕生後,各在是否應予立法明文承認其法人資可上即產生理論上之爭議。依傳統理論公司股東須為複數始得取得法人資格始是。但另有見解認為法人資格之賦與,是否必須建立在股東為複數之社團上實頗值得商榷;而且縱使服東為一人,在特情形下該類公司未必即因此喪失其社團性,故不應以股東人數為一人作為是否應承認其法人資格之依據。除之外,亦有學者從一人公司已具有一定財產之角度探討,認為一人公司已具有一定財產之角度探討,認為一人公司未必應附屬於社團理論,亦可經由財團之角度觀察,作為賦予其法人資格之法理依據。各該理論由於均各有所本,故長久以來在各國學者間形成相持不下之局面,本文即係引介各相關理論之重點,經分析比較後,提出個人見解。 |
英文摘要 | Ever since the one man company system was issued by law and approved by Leichtenstein in 1925, regarding to where it belongs to and if it can be qualified as an artificial person has been in debate, theoretically. According to the traditional theory, the reason why a company could be qualified as an artificial person is based on either the contract relation or the association constituted by multiple shareholders. In either case, the insider needs to be plural to be qualified as the artificial person. Right now, the one man company has been formed to meet the need of the current marketing world. Consequently, there is a debate for every country to consider whether there is a need to pass a law to approve the status of the one man company as an artificial person. A company needs to have plural shareholders to be qualified as an artificial person under the traditional rule. Since the one man company only has one shareholder, it is impossible to be qualified as an artificial person under such a kind of economical system. But someone does have the doubt of the criteria to qualify the status of an artificial person under such a kind of economical system. But someone does have the doubt of the criteria to quality the status of an artificial person based on the association of plural shareholders; moreover, even if there is only one person as the shareholder, under certain circumstance, this type of company will not lose the status as an association. Thus, it is not proper to determine the qualification as an artificial person simply based on the number of shareholders. Other than that, some other researchers believe that the one man company may not need to be concerned in association theory based on the view point of its financial background. in other words, the qualification as an artificial person may be based on the observation of the financial group. Such kind of view point is supported by its own solid theoretical background, and that is why the debate is still going on among the scholars of the world. This article is to explore a personal view point after analytical investigation upon those theories involved in the discussions. |
本系統中英文摘要資訊取自各篇刊載內容。