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Research On The Basic Issues Of Business Transfer

Posted on:2018-08-25Degree:DoctorType:Dissertation
Country:ChinaCandidate:L LiaoFull Text:PDF
GTID:1366330542966055Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Business assignment related issues are not only a commercial law issue,but also a civil law question.Of which,business assignment first assumed as a kind of commercial transaction behavior which put contract as isotopic carrier.Although the essential attribute of object is different from personal property and real-estate containing scope affirmed traditional property law,under the existing fundamental realities of the country,the affirmation of its delivery regulation should obey the property law's regulation.In addition to this,credit and debt,prohibition of business strife,worker protection of business assignment are all related to specific rules of civil law.Thus,this paper analyzes specific legal question of business assignment system from the view of civil law,utilizes research methods of history,compare,value and demonstration,inspects research path of practicing current situation and design specific institution,then it operate systematic research for specific questions of business assignment.Expect for introductory theory,the paper is divided into two pieces and conclusion.Of which,the first piece “basic theory of business assignment” contains the first chapter to the third chapter;the second piece “specific system of business assignment” contains the fourth chapter to the seventh chapter.The conclusion is the eighth chapter “legislation structure of business assignment system”.It is strive to discuss and research for our country's business assignment system deeply according to the content of the two pieces and the conclusion.Its path is mainly reflected in the below two aspects: first,on account of the inspect of history and empirical analysis,it teases our current,related statutory rules which is related to business assignment system then evaluate and analyse it.Second,base on holding to our country's basic current situation of business assignment system and analyzing to related institution of comparative law,it raised basic outline of business assignment system and construction plan of specific system in legislation.Chapter one,the context and connotation of “business” in business assignment.The word “Business” has multiple meanings in modern Chinese language and could use in different situations,such as operating activities,business license,operating lease,business pledge and so on.From the etymology meaning,business is often explained as “management function” or “particular management function(business service industry,transportation and so on).” In Common Law,“do business or trade” is the corresponding words for the verb “business”,it means “ commercial activity operated by specific subject” or “working on deal or commercial work”.In the area of Commercial Law,business is a very important and basic concept.As a key concept of modern commercial law,although “business” not constitute the basic concept of commercial law like merchant and commercial act,from the view of commercial law is relation law of enterprise,the importance of “business”is not under merchant and commercial act.By the influence of Japanese law,China believes that business could divided into subjective meaning business and objective meaning business.The upper-seat concept of business means business freedom.Some scholar directly translated the “fonds de commerce”of French law into “shop fittings”.However,business and shop fittings are not equal concepts.About the relations between shop fitting right and business,there are several points to stress and pay attention: First,shop fittings right(or shop fittings)and business are a couple intimate and associated contents,but there are essential differences.Second,the appearance and development of shop fittings play pivotal role for China's economic development in specific historical period,but is out of accord with the times now.Third,shop fittings right has inspiration for “transfer fee” of modern shops.The “business” researched in this paper means objective business,which has same meaning for the concepts of business property and commercial operating assets.Chapter two: Inscape discriminate of business.Business property is not only material basis when commercial subject works on commercial activities,but also constitute self-financial resources and credit surface.General speaking,business property including manage site,machinery equipment,raw material and commodity,firm,patent,industrial engineering copyright,credit and debt,and truth relation which has property interest,such as customer group.In this regard,tangible inscape means those matters which consume specific space and could be perceived by people,including machine and equipment,raw material,finished products and semi-finished products,etc.Intangible inscape refers to those which are not perceptive by people and only cognitive from concept,including customer group,firm,commercial affairs shop sign,industrial property right,credit and debt,etc.It is worth nothing that customer group is the essential factor of all inscape.If there is essential inscape of business,that is customer group and it is the sole factor.Customer group and commercial affairs business are a kind of one-to-one corresponding relations.In other words: if there are no customer group,there are no commercial affairs business;if there are commercial affairs business,there must have customer groups.In the criteria of customer group,it went through a transition of “business administration register”---“average turnover theory”----“public business theory”.Although there always exist disputes,“public business theory” owns its advantages which is not analogical by the former two.Chapter three:Nature affirm and review of business.The object of business assignment means the objective business.The reason why it become the transferential object is that it has integrity,relative independentability,sustain volatility and particularity of property,etc.Business refers to objective organized organic property aggregation of commercial affairs subjects.In terms of inscape,it contains tangible inscape and intangible inscape.Of which,expect all kinds of debts,brand,patent and other industrial copyrights,intangible inscape also include truth relations of property nature such as customer group.Those factors hang together for the purpose of conforming and formed the concept of business in this paper.In the normative system of China,business assignment is different from enterprise transfer.In china,enterprise is endowed the qualification of civil subject,but the business is not.Compared with it,the concept of enterprise ownership is actually existing,the right subject is enterprise itself,and the object refers to tangible property included by the enterprise.However,the concept of business ownership is not really ownership,but a ideally ownership and not generate law effect of ownership.In nature,business ownership is only a kind of special dominating right.Chapter four: Basic value and practice form of business assignment.Business transfer and its relevant system is a kind of specific system of civil and commercial law,its vital function and basic value embodiment are the more chief task for constructing relative logical system.The basic value of business assignment could generalize as: deal freedom,keep work-piece ratio and enterprise survival,etc.In the premise of reaching consensus based on the limit of business assignment,The concrete content of business assignment includes freedom of start business or not,freedom of transaction,and be limited by current normative system.Those norms include public law norms and private law norms.In this regard,there are corporation law,administrative permission law,antitrust and unfair competition law,labour law and consumer protection law,etc.As a whole,in the current normative systems of China,there is short of a set of suitable business assignment mechanism,high-rank and blanket applicable law.Chapter five: Establishment and come into force of business assignment contract.The current 15 kinds of named contract can't play a role of adjust business assignment contract completely.Some scholar believe that business assignment contract could bring into the chapter 9 of Contract Law and give some adjust,but this view seems ignore the difference of business assignment contract with common sales contract.Those difference are reflected in those aspects: particularity of object element,particularity of form element,complexity of content factor and particularity of law adjustment model.Expect meet common important documents affirmed by Contract Law,business assignment contract also need review commercial affairs legal capacity,declaration of will,register and publicity,law and public interest elements.Beyond that,typical invalid examples of business assignment agreement includes: invalid of surpass legal capacity,violate competition order and damage country interest.Chapter six: Debtor-creditor relationship and shoulder responsibility of business assignment.If the debtor-creditor relationship will transfer with business assignment.There is no specific specification in China's current laws,so is the juridical practice.In the juridical practice,there is a case law believe that the debtor-creditor relationship of primary transferor will transfer with the business assignment and others have the opposite opinion.If the debtor-creditor relationship will transfer with business assignment is decided by business assets constitution elements affirmation essentially.If the debtor-creditor relationship is affirmed as inscape of business,then,debtor-creditor relationship will form organized organic property entirety with other business assets inscape and transfer together.Otherwise,if it excludes debtor-creditor relationship out of business assets,it will reach a opposite conclusion.In addition,continuing using for firm by assignee has a certain of relations with assuming rule of debt.Assignee could transfer possible assuming liability for satisfaction to consideration of contract by negotiation of concluding a contract terms which has more strong risk control ability.Thus,it is rational to ask assignee who continue to use the firm to assume liability for satisfaction of debt for primary business.Meanwhile,the responsibility is not means absolute liability and limited by prescribed period for litigation.Benefit protection mechanism research research of creditor is relative to the other side of responsibility for debt of assignee.In business assignment,it has legal basis to proceed special protection for creditor's interest.The specific system and measures about creditor protection are mainly including: precaution and protection of contract terms,inform rights of creditor,revocation right of creditor and joint liability system.As a kind of special debtor-creditor relationship,labour contractual relationship will change with the business assignment in the occasion of business assignment.Combined with some countries and regions' stipulation,the author regards that in the holding of adopting labor relation of business assignment,it should keep the principle of making assignee enterprise receive comprehensively and retain the excepting situation of relieving labor contract and compensate labors.Chapter seven: Prohibition of business strife in business assignment.The obligation of prohibition in business competition in business assignment means that not allowed to appear operate or sell same business activity in the start of operation in the same place and time.Obligation of prohibition o n business competition in business assignment its system construction are important constituent part of business assignment.Obligation of prohibition on business competition of business assignment has dual nature of form,definiteness of time and finiteness of territory,etc.Its obligation is belong to payment obligation in nature,but in the influence of modern society,the holding of its nature should be more open and flexible.Because of its dual nature of obligation of prohibition in business competition in business assignment,its liability form contains dual attributes of violate a treaty and infringement.From the scope of shouldering responsibility and compensating for loss,the path of are mainly include appoint penal sum,right of cancellation,and acquire compensation of expectation interest.The tort paths are mainly include cessation of infringement,compensate for loss and exert classify right to realize right relief.Based on relief approaches of the above two rights,the right of assuming tortious liability seems more beneficial to the infringed.Chapter eight: Specific construction of business assignment system.For the final foothold of business assignment system research,it should embodied as the affirmation that the legislation to business assignment and construction for specific institution of business assignment.It is not a complete strange concept of business assignment,although it hasn't shape up in any formal meaning,it has formed some rules embraced business assignment in the practice of commercial affairs which also exposed a lot of questions.For specific system construction of business assignment,it is not the core content of this chapter but also key viewpoint of the whole paper.There are six aspects to embody designing scheme of specific system for business assignment:(?)Affirm concept of business assignment.Although China is a country of combination of civil and commercial,the affirmation is not should affirmed by code civil which is also reflected in the legislative proposal of code civil general rules.As entirety selling act of all business property,it should be affirmed by Commercial Law General Rules.(?)Valid judge rules of business assignment contract.Expect meet ordinary contractual requirement of validity of business assignment contract for valid judge rules,it also should include those content of two aspects: one side,the content of business assignment contract must accord with “noneffective stipulation of contract” and “ revocation of contract” of Contract Law.On the other side,when it refers to the situation of when one party is the legal person,the influence of interior decision flaw to validity of contract.Comparatively speaking,the author advice to review the 22 strip of corporation law which defines the valid judge rules to flaw.Resolution content of board of shareholders,board of directors will not result in the valid of contract inevitably when they break law or administrative laws and regulations.(?)Transition rule of property in business assignment.To avoid clash for existed movable property and real estate real rights rule which will effect transaction safety further.Business gather property transition rules are followed by alteration rule of real right from property law.It means that delivery of movable property,change of registration of real estate,security and bill,manage transfer ownership register and endorsement,firm,brand,patent are all should manage conversion privilege as business administration and related administrative provisions of intellectual property.(?)Prohibition of business strife in business assignment.It includes stipulated obligation of prohibition on business competition and lawful obligation of prohibition on business competition.In the proceed of business transfer,the law should affirm that the assignor should assume the duty of obligation of prohibition on business competition.The mainly reference factors are territory,time and profession.During the legal shouldering responsibility for obligation of prohibition on business competition,relief approach of obligee should contain cessation of infringement,compensate for loss,perform including right and maintain personal legal interest by legal rescission right of contract.(?)Creditor protection mechanism in business assignment.About protection mechanism of creditor,there are mainly reflected in the next two aspects: prevent beforehand guarding mechanism and joint liability mechanism after the event.Prevent beforehand mechanism includes establish commercial affairs announcement system,endow creditor objection right and bidding right,protect informed right of creditor.In addition,the author advice to bring the third party payment to solve the puzzle of protecting creditors when face acting noticing procedures.Meanwhile,prevent guarding mechanism also include creditors' objection right and bidding right for business assignment value after assignee carried out notice obligation.The specific application of joint responsibilities mechanism mainly play roles under the situation of unrealized informing right of creditor.In this regard,the protection to joint responsibility mechanism which applied to creditors should meet the below two conditions: first,assignee of business assignment hasn't perform notice obligation;second,the price payment of business transfer is not applied to the third party payment and has accomplished payment.(?)Assuming of debtor-creditor relationship of business assignment.No matter if the debtor-creditor relationship will transfer by business assignment,it is decided by affirmation of business assets inscape essentially.When judge if the debtor-creditor relationship is the inscape of business assets,the mainly standard is confirmed by the contract of the party.In addition,assignee is related to the continue using of firm and assuming rule,and limited by prescribed period of litigation.As a kind of special debtor-creditor relationship of labor contractual relationship,contractual relationship will change for business assignment on the occasion of business assignment.The author believes that about the problem of labor relation adopting of business assignment,it should insist the principle of making assignee enterprise receiving comprehensive in the mass and retain the excepted condition of compensating labors when relieve labor contract.
Keywords/Search Tags:business, business assignment, assets aggregation, responsibility for debt, prohibition of business strife
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