论德国公司法中禁止隐性实物出资问题

隐性实物出资是指股东在公司设立或增资时 ,先将股金交给公司 ,然后向公司出售货物 ,并以收回货款的方式收回其缴纳的股金。隐性实物出资的目的是逃避注册法院对实物出资的法定审查 ,其结果是资本真实原则不能切实实施 ,公司本身的利益、小股东的利益尤其是公司债权人的利益可能会受到损害。因此这种出资安排为德国的司法实践所禁止。类似的问题在我国公司的出资实践中也同样存在 ,德国禁止隐性实物出资的做法可供我们借鉴

Problems of Hidden Physical Capital Banned in German Company Laws

Hidden physical capital refers to the share capital which shareholder had paid to the company at the time it was established or it made increased mass capital and then taking it back as payment for the goods he sold to the company so as to avoid legal investigation of physical capital from the registered court. As a result, the principle of real capital could not be put into effect practically and the interests of creditors as well as those of the company and small share holders could be jeopardized. So this kind of capital arrangement has been banned by judicial practice in Germany. This paper not only analyses its definition, causes, harmfulness and legal elements, but also discusses its classification and legal consequences. Since there are similar problems in company capital arrangement in China, lessons could be drawn from Germany's practice of banning hidden physical capital.