| Transfer of business is a system which is "theoretically ambiguous and useful in practice". Because of different understanding of the concept of "business", and many presentation formats appearing in commercial practice, resulting dislocation in system design, triggering specific troubles in the application of judicial practice. Therefore, from the start with basic concepts, this article aims at exploring the underlying causes of institutional change, summing up typical presentation formats and common realization pattern, discussing special potency rules of transfer of business, and thinking about the superiority and inferior,re-constructing rules of transfer of business in China. This paper argues the following issues:Firstly, the concept definition of "business" and "transfer of business". Due to different understanding of "business", people have great discrepancy in the concept of "transfer of business". Business is different from commerce, assets and enterprise, among which the extension of "business" is greater than "enterprise", and an "enterprise" may include a number of independent "business". "Business" has two meanings:one is objective meaning, referring to independent property as a whole with a specific business function. The property is accumulated by commercial body around special management intention. The other is subjective meaning, which means utilizing the whole property to undertake successive operation activities for certain profit-making purpose. The subjective meaning and objective meaning are closely linked. The former bases on the latter, and objective meaning could make use of its value more effectively only through the subjective meaning from operating activities.The concept of business in business transfer refers is said in subjectivity. There are five theories of the nature of business:business personality theory, business property theory, business organization theory, business organism theory and business behavior theory. As a collection of objects, business is essentially an aggregation made of various property rights for a specific business purpose, with an independent operation function. Any benefit could be brought into the category of business, as long as it could be evaluated by money. Under transfer of business, the transferee is not intended to have physical property, or the fact relations itself, but in order to obtain the enterprise’s rights composed of droits, legal nexus and factual nexus, including the rights obtained by utilizing the whole business property. Legal features of business manifest in three aspects:the unification of collection and independence, the unification of stability and change, the unification of essential factor, normal factor and accidental factor.Transfer of business is a hybrid contract behavior, and the object of transfer is aggregation of organic property rights. Transfer of business has an essential difference from individual property transfer, asset acquisition, company merger, factual merger and company segmentation. It is an independent legal system. As for the essence of transfer of business, a representative viewpoints is that operator’s status replacement theory, business property transfer theory, business organization transfer theory, operator’s status replacement theory+ business property transfer theory. This paper claims that the essence of the transfer of business is alteration of ownership attribution in connection with objective business, and is alteration of business ownership in connection with subjective business. The author sums up the legal characteristics of transfer of business as following:the transfer of the whole, substaintial elements, formula behavior and mixed contract.Secondly, legal affirmance of business transfer. As the object of business transfer,"Business" has experienced historical vicissitude from agricultural stage, handicraft period, industrialization time until information time. Combing the history of "business", we may draw two conclusions:First, "business" has experienced evolution from aggregation of things to aggregation of property and rights. Second, the utilization of "business" pays equal attention to use value and value. Thirdly,the extention of business concept depend on social development level of productivity, but the coexist of multi business made we can use those rules created in separate times, such as agriculture time,handicraft industry time and industrialization time.the legal system should repons to modern business transfer base on economic and life change.The underlying reasons for legal affirmance for transfer of business display in two aspects: fully making use of material and huge needs of huge capital are the root causes of the appearance of transfer of business; capital movement accelerated by scientific and technological revolution is a necessary factor for the development of transfer of business. In addition, the development of object theory about legal relationship lays a solid jurisprudence basis on legal affirmance for transfer of business. This article argues this in two ways:first, as an object of legal relationship, the essence of "business" exists as a transaction object. Traditional theory claimed that only single object could be the object of legal relationship. However, the traditional theory has changed since business becomes an object of legal relationship. Complex object theory is a significant development to Legal relationship object theory. Second, "business" as a legal relationship object is not defensed to the principle of "a right to an object".As an aggregation, the utilization of "business" no other than two situations:attribution relationship, guarantee and usufructuary relationship. Then, single element cannot be "an object" because they are short of specificity and independence. "A right to an object" principle is a description of business property in a static sense, but in real world business property is in a flux state from time to time. Observed from a dynamic angle, as an object of legal relationship, the essence of "business" exists as a transaction object:Business property generates for transaction, exists for transaction, perishes for transaction, and it has following features of object transaction:certainty, possibility, legitimacy and pertinency.Business transfer system belongs to the Continental legal system,mainly appeared in "Japanese commercial code", "Japanes company Law", "Germany commercial code", "France commercial code" and its"Business property trade law", "Russia civil code" and "Macao commercial code" and so on. Case law in anglo-american legal system also provide us many useful experience.Thirdly, the practise of business transfer. The"business" includes essential factor, normal factor and accidental factor. The basic of business transfer is facter transfer. There are several controversial focus about elements of "business". Through analysis and argument, the author deems that in transfer of business, real substance and business right are essential factors, customer groups, real estate, credit and debt are normal factor, debt is accidental factor.Manifestation practical formats of transfer of business include:1. The transfer of enterprises as a whole is the most typical form; 2. The transfer of important part are often happened. There are several recognized standards to define what is "important part", such as quantitative standard, substantive standard, the standard of placing equal stress on quality and quantity, property catalogue standard, among which the standard of placing equal stress on quality and quantity is widely adopted; 3. Transfer of business triggered by transfer of business name. The defined standard of transfer of business name includes modal and essential standards. Most countries adopt absolute transfer doctrine, but the author suggests that relative transfer doctrine should be applied conditionally. If the transfer is not contrary to the principle of safeguarding the safety of transactions, legal norms should be designed to inhibit the production of negative impact in order to promote and incentive transactions.4. Transfer of business triggered by shop leasehold. The source of shop leasehold right is comes from the right of pudi originated,leasehold right and renewal right of business assets of foreign law. The right of transfer of shop leasehold was to protect the owner’s rights of use and benefits, and should be enjoyed by those who have paid labor for the increment of pudi, rather than monopolized by the owner of pudi. The essence of transfer of shop leasehold and right to pudi is transfer of business.5. Commericial franchise right has a characteristic of "bundle of rights", which combined with brand and business special technology as the core set. This is a organic property right transfer. The legal nature of commercial franchise is transfer of business, and transfer of business is an important means to expand for franchise system.Fourthly, effectiveness rules of transfer of business. This is the core of my paper. First of all, this section pays attention to effectiveness cognizance of transfer of business. The valid conditions of transfer of business contract should particularly emphasize the following points:the assignee must have the corresponding commercial right capability and commercial behavior capability; according to transfer of business in formation mechanism of meaning expression; transfer of business contract shall not violate the law or social public interests. The effectiveness of transfer of business contract contains three states: invalid contract, revocable contract and uncertain effectiveness contract, among which this paper mainly discusses the revocable contract. As to the effectiveness of transfer of business contract influenced by the resolution flaws of shareholders general assembly, there exist two views:negation theory and affirmation theory. To protect rights and interests of shareholders, this article agrees with affirmation theory, and discuss whether should transfer of business go through the resolution under shareholders general assembly. Special circumstances the author argues include companies that go out of business, companies that is beyond debt, companies in liquidation and parent-subsidiary companies. With respect to right to countermand in transfer of business contract, the author disserts in detail main body of exertion, methods, period, limitations and exclusions.Versus bilateral parties of transfer of business, the effectiveness mainly establishes on interest balance mechanism between the assignor and the assignee, with information asymmetry theory and operation value theory as theoretical basis. There are two special effectiveness rules to parties under transfer of business:one is property transfer rule. The other is non-competence obligation rule in transfer of business. According to a Janpanese scholar’s viewpoint, res accessoral is "the thing linked in unification for a certain economic purposes". Based on induction and argumentation of res accessoral theories in civil law system, the author puts forward that the concept of "res accessoral" in modern civil law should be expanded and apply to setting up property transfer rule in transfer of business. Besides, the author analyzes res capitalis and res accessoral in sorts of transfer of business, and reckons that res accessoral should transfer when res capitalis transfers in the light of the legal principle that res capitalis and res accessoral share the same fate. This paper argues that among interests protected by non-competence clauses in transfer of business, the maintenance of overall value of "business" and the development and prosperity of commercial economic should be put in prior consideration, and freedom from business and reasonable restrictions on competition are in a secondary position. The nature of non-competence obligation in transfer of business is compellent criterion, so it can be exempted through statutory procedures. The contravention to the non-competence obligations are subsequent contractual obligations and contingent obligations in a broad sense so its responsibility nature is the copetition of default responsibility and tort liability. Between default responsibility and tort liability, the parties may choose a request, but the choice of tort liability is more favorable because tort liability offers greater protection for parties by virtue of the breach of the principle of privity of contract.The effectiveness rules for creditors under transfer of business. In the process of transfer of business, creditors are in special status:their decision-making authority is deprived by decision-making popedom in transfer of business, their investment is confronted with huge risk, and their interests are usually impaired from fraud because transfer of business is chronically treated as a means for endorsers to avoid debt. This article analyzes this rules from two aspects of statutory law and case law. In the background of statutory law, the measures to protect creditors include contractual clauses protection concluded by creditors and parties, realization of the right to know (the right to obtain information) for creditors, the creditor’s right of rescission for deceptive transfer of business, protection for creditors’interests based on appearance theory, system design for joint responsibility and self-protecting system for special creditors. In case law, the system to protect future creditors is successor responsibility rule that mainly exists in American case law. This system has two deveplped stages. The first stage is traditional rule of successor responsiblility have strict conditions,those are:the endorser and transferee have the same actual controller;after good assets are transferred by the endorser, a new company which carries on the same business as the former company and utilizes its assets and prestige to keep continuity for business activities will be set up; the transfer company dismissed;asset transfer between two companies is actually illegal practice covered by a legal form, and its essence is extension for corporate personality.For these four conditions, smart business man can easily elude with small change. The second stage is new successor responsibility rules, which have eliminate those shortage, finded a newer supporting theory which is enterprise exsitence rule and product existence rule. These two rules abandon the condition of owner existence, and emphasize the existence of business and the extention of company selfhood. Then it enlarge the adaptive area. According to essential equity principle, the judge can demand the transferee bearing debt for the endorser to avoid "slipping away by casting off a cloak".Fifthly, reflection and reconstruction on transfer of business system in China. Deep thinking about the business transfer system in China, mainly problems are those that,the first is the mistake orientation for the system valuation due to the confusion of definition of concept,and the complexity of practice form.the second is the ideology confusion of the system design due to the habit thinking of policy governance and overprotection for state assets. The third is mistake in material system. There are two aspect mistake, firstly the normal rules are imperfect,so that it can not adapte varies practice form, such as the un-uniform meaning and extension result in easily confusion with other forms of Enterprise’s mergers and acquisitions, defective of the effectiveness designation regulations which is violated the self governance rules in civil law,delaying research about asstes transfer rules, lacking of Prohibition of problem based on the ignoring of value in business transter system, violation of the rules of assignment of debts opposite to jurisprudence.Secondly for the special rules,it is too centralize and limited to adapte to varies practice form. These problem can be sumarried as follows, relatively intact of the state business transfer rules which is un-uniform in legal level,single firm transfer rules with limited adaption areas,wanting shops tenancy transfer rules which can show the add-value ot shop investation, opening licenced management transfer rules without perfect system of civil responsibility assignment, and absence of unitive law about Enterprise’s mergers and acquisitions resulted the practice uniform of business transfer.To reconstruct our business transfer system useing beneficial experience of foreign legislative pattern for reference, firstly the value orientation of this system should point to the real operation value and benefit balance. Secondly the system belief should be set up based on business legal instead of pokicy governance.Thirdly, the legal mode should select the method of combination of normal regulation and special regulation in civil code.The normal rules in civil code should contains these content, such as firstly, to scientify definit the meaning and extension of business transfer and definitude its essencial factor and identify regulation. Secondly, to realize the differenc of commonweal conflict and private conflict,perfect the effectiveness cognizance system. Thirdly,to set up a diversified taxonomy of material as well as construction of uniform assets transfer rules for business transfer. Fourthly,to enact prohibition obligation in competitive limits to fulfill the goal of operational value of business transfer system. Fifthly,to perfect the practice program of right to know for creditor and construct pre-keep away mechanism of creditor’s right protection. Sixthly, to tamp the basic theory of the debt assignment regulations, reconstructing the post relief mechanism of debt protection.The special rules should contain contents like follows. Firstly,to perfect business transfer rules of state corperate to protect state asstes. Secondly,step up the effectiveness level of business transfer rules with firm transfer, to perfect the protection machenism for creditors. Thirdly, to construct the ascription machenism of civil responsibility in licenced management so on to perfect the benefit of third persons. Fourthly,to establish the business transfer rules for shops tenancy,to perfect the equilibrium mechanism of parties profit. Fifthly,to constitute the criterion of corporation merger and acquisition strictly, to construct the law enviromnet for business transfer. |
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