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Research On The System Of Enterprise Transfer

Posted on:2009-10-13Degree:DoctorType:Dissertation
Country:ChinaCandidate:X C TengFull Text:PDF
GTID:1116360272484065Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The legal System of enterprise transfer is one of the most important systems in commercial law. According to modern theory of business, enterprise consists of a series of separate property and commercial facts, which is not equal to simple summation of these elements, but a system of going concern values. The most essential function of the system of enterprise transfer is to maintain the enterprise as a whole entity in the market. And this is beneficial to transferor, transferee, and the social economics.In recent years, with the establishment of the system of market economy, the system of enterprise transfer is widely applied to reformation of enterprise in China. Unfortunately, this system has not attainted enough attention in China, which causes many serious problems in judicial practice. In this circumstance, it is important and valuable to do research on theories of transfer of enterprise and to promote the legislation of China's system of enterprise transfer.The target of this essay is to construct the system of enterprise transfer on the basis of the introduction and analysis of other country's research and legislation of this system, and also in consideration of our country's enterprise reform practices.Exactly speaking, this essay firstly explains the basic theory of the system of enterprise transfer, and then do research on special rules of transfer of enterprise. The construction of this essay composes of two main parts: the first part consists of three chapters, which is to explain the legal meaning of the enterprise which is the object of transfer; the second part consists of four chapters, which is about special rules of the system of enterprise transfer.Concerning the enterprise, this article analyzes its conception, classification, elements, legal characters, etc. The enterprise can be transferred because it is a kind of special property which consists of a series of related elements. It has some basic attributes like identical functions, comparatively independence, floating contents, and special property. Enterprise can be classified into material elements and immaterial elements, requisite elements and possible elements. All kinds of enterprises have a same element—clients. It composes not only the realistic clients, but also the potential ones. This element is important to enterprise, because without clients, there will not be enterprise.Concerning the special rules of the system of enterprise transfer, this article firstly analyzes the basic values of the system of enterprise transfer, and then compares this system with the related systems such as consolidation, assets transfer, merger and acquisition and the stock transfer. As an important system of commercial law, the system of enterprise transfer embodies basic principles such as freedom and efficiency of transfer and maintenance of going concern value of the enterprise. Compared with the common commercial trade, transfer of the enterprise has particularity in object, transfer form, and the right and obligation of the related parties. Therefore, except for being regulated by general provisions of the contract law, the transfer of enterprise is also regulated by special law.The registration and publication of the contract of the enterprise transfer, inheritance of the credit and debts, and the non-competition rules are the most important and specific rules of the system of enterprise transfer. The three rules above are designed to protect the benefits of related parties in the transfer of enterprise, and also, they maintain the trade order and protect a whole benefit of the society. The registration and publication rule of the enterprise transfer contract is designed as a particular means to enhance the protection of interests of the related parties, especially the creditor of transferor. This protection mainly embodied the priority of domination to the transfer consideration. Differently, the protection to creditor supplied by the inheritance system of the credit and debts is carried out through the way that the transferee who used the original trade name bears the debts of the transferred enterprise. This is a kind of protection of the reliable interests and rights appearance. The non-competition rule is designed to protect the interests of the transferee, and the non-competition obligation of the transferor will help the transferee achieve his expected interests.The last part of this article concentrates on the frame and contents of the system of enterprise transfer in our country. In the microcosmic aspect, the author suggests that we should widely use the production of foreign legislation, theory harvest and judicatory practice for reference to arrange the specific contents of the system of enterprise transfer. In the macroscopical aspect, we should consider of the legislation mode of civil and commercial law in our country while constructing our own system of enterprise transfer.
Keywords/Search Tags:Business, Enterprise, Transfer of enterprise, System construction
PDF Full Text Request
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