【作者】 来冰峰；

【导师】 王彦明；

【作者基本信息】 吉林大学 ， 民商法学， 2007， 硕士

【摘要】 随着知识经济的发展,公司的经营效益与劳动者的劳动能力、经营者经营管理素质以及技术人员技术水平的关系越来越密切。从19世纪中期开始,西方经济学界就已经展开了人力资本的研究,并随着时代对人才呼唤的趋势不断深入,迄今已经取得了瞩目的成果,形成了完备的人力资本理论。公司法在对公司运营规范的过程中也应该反映这种要求,承认劳务出资形式的合法地位,但是劳务出资制度的建立却不是一个简单的事,不仅仅涉及制度的安排,更需要理论的支持,需要重新反思公司法的立法价值,改造传统的出资理论,从而为劳务出资提供法理依据,也使得出资理论既完善又具时代精神。本文在对劳务出资概念进行详细的比较界定的基础上,针对劳务出资在理论上和实务中存在和将会面临的障碍,作了梳理和分析,从而论证了劳务出资的适格性,进而对劳务出资制度的建构提出了一些立法建议。更多还原

【Abstract】 With the advancement of technology, economic growth increasingly depends on the people’s innovative ability and professional qualities. Especially in recent years after the appearance of the knowledge-based economy and informationization process of industry, people-oriented businesses displayed. Corporation Law, as the most important law to fine-tuning the market-based economy should reflect this trend, allowing the Labor Service Contribution.The main structure of the paper is divided into four parts, including the definition of The Labor Service and Labor Service Contribution, The Contribution Qualification of The Labor Service, the legal analysis on the law of Labor Service Contribution home and abroad, and the suggestion of legislation about the system of The Labor Service Contribution.The first part is to define the labor and the Labor Service Contribution. It mainly includes definition of the labor and comparison with other similar concepts and the choice about the concept of the Labor Service Contribution. For there is a chaos existed in economic and legal field. The scholars always argue for some meaningless thing from different concepts showing the same meaning. So I think before we do some researches we must know the nicely meaning. First, the paper considers Labor Service Contributions the correct concept to explain the Phenomenon of stockholder in exchange for shares with labor service, through comparing the concepts of labor service to technology, labor force, human capital contribution and intellectual contribution.The second part is the most important part, which is mainly about Contribution Qualification of the Labor Service Contribution. The author draws the conclusion from three angles of view. At first it analyzes the condition and request of Qualification of Contribution. Then expound the reflection of theories challenging the system of Labor Services Contribution, then illuminate dominance occurred in process of economic practice. Qualification of Contribution system refers to condition and competency that property invested into the company should be hold. Traditional theories in the west think it basically included attributes as follows: certainty, existence, to be exchanged, good for company and can be evaluated. In China for a long time this field had been blank, the theory in the west can undoubtedly help us to understand capital contribution category, but these theories all had been formed in the 1970s. Weather they also adapt to today’s development are oppugned by many scholars, Professor li Yougen think that the Qualification of Contribution should include three attributes of serviceability, controllability, the possibility of creditor protection. I agree with him. The Labor Service Contribution fully holds these characters, so it can be invested to the company.Scholar opposed to Labor Service Contribution challenged the question with following reasons: First, investor has not contributed anything to company, why they can possess of the corporation shares? Second, labor service can not exist without human body, but can the body be the object of the right? Third, the property of shareholders should be enforced by the courthouse when the company faces to bankruptcy, but labor service can’t be enforced, it is harmful to protect the safe transactions. In this paper I think the reason why these scholars question the Labor Service is they misunderstood the nature of the labor service and the theory of Contribution System. By correcting these error opinions it shows that there is no fatal obstacle to hinder Labor Service Contribution.In recent years, more and more people calling for The Labor Service Contribution reflect the needs of it in practice. The reform of the income distribution to entrepreneurs is the main reason to explain Annual Salary and Stock Options. And the Labor Service Contributions is the way to remedy the deficiencies of those measures. And the Labor Service Contribution also can solve the most fundamental difficulty of the labor ESOP-workers don’t having much money to buy the shares.In part three, it introduces and analyzes the legislation of The Labor Service Contribution home and aboard. In the west there have to be three attitudes. Italian Civil Code, Korea Commercial Law is as represented by the strict prohibition of Marxism; The German company law, EU Second Company Law, as well as Canada Business Companies Act are as represented by the distinction between labor service paid out and unpaid out. England case law is as represented by the absolutely acceptance. The first one shows the traditional value judgment, is not suited to today’s economic development. Second one is a progress comparing to the first one. It admitted the labor services had paid out to invest to the company. The last mode is the most advanced one. This legislation keep up with the trend of diversification of the form of Capital. The Enlightenment of these three legislative attitudes is that the legislation should be open without ignoring establishing the system to protect the safe transaction. In china the Corporation Law forbid the Labor Service Contribution, but the demand for Labor Service Contribution practically exist. The local legislature also quietly made an attempt. However, we can not totally fence with the problem, because evading the issue is not the fundamental way to solve the problem. With the development of economy and technology, the environment of The Labor Service Contribution will become better and better. Allowing Labor Service Contribution is the best choice of the era.Part four is the author’s legislative suggestion. The first is to recognize the legitimacy of the Labor Service Contribution. The second is to establish and improve the system of Labor Capital Evaluation. Including the master of evaluation and surveillance system to evaluation, the special rule of the evaluation way. This paper has no intention to build a comprehensive evaluation system, but only to create a reasonable institutional environment and put forward some abstract principle. The third is to improve the System of Liability of Labor Service Contribution. To establish Investment Guarantees System, the Adjustment of Labor Services Contribution system and the Mandatory Insurance system.更多还原