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Legal Research On The System Of Business Transfer

Posted on:2012-04-03Degree:MasterType:Thesis
Country:ChinaCandidate:Q S KangFull Text:PDF
GTID:2166330332997620Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Business transfer is one of the important property transaction modes, which is the business behavior with transferring business to others. Business, which is the target of the business transfer, 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. So business transfer is different from general enterprise asset transfer and stock transfer behavior. But in essence, it is still a kind of contract behavior of property transfer, rather than an organic law behavior, without destroying or renewing the subject. So it is different from the merger, division, enterprise acquisition and other property transaction types. So, business transfer behavior needs distinctive legal system to adjust.In the deserved, as an important commercial law system, the legal system of business transfer must efficiently maximize the value of the transaction, which is not only the genes and the primacy, but also the guidance and logical starting point of the system. So the purpose of this legal system is to make sure that through the efficiency and free exercise of the business transfer, commercial subjects can achieve their goal of benefit maximization in the fairness and secure trading environment.In the real, because of the positive economic function of the business transfer, in legislation, most of countries and regions have paid great attention. These legal system of regulation try their best to realize the freedom, efficiency, fairness and safety aspects of the business transfer, and to pursue the great efforts. But owning to the different legal tradition and realistic conditions, many different concrete designs of the system have been formed in the world. The optimum of benefit practicing include: the strict prepositional procedure of business transfer system of corporation, the relative invalid system of business transfer contract, the registration and publication system of business transfer contract, the non-competition rules of business assignor, the assignor's right to terminate the transfer contract and priority right in sell on credit, the content of business transfer contract, the inherited system of labor contract and the assignee liability system, etc.And in our country, the legislation of business transfer is still in the passive stage question inspired by question. It is mainly to cope with business transfer problems in certain economic field, on certain point or time, and in certain region range, through some administrative regulations, judicial interpretation, local regulations, department regulations, etc. But as a unique property business transaction, business transfer plays an important role in reformation of enterprise, because of promoting optimal allocation of resources and improving economic efficiency. So it is widely applied to reformation of enterprise in China. Unfortunately, this system has not attainted enough attention in our country, which causes a lot of serious problems in judicial practice. Therefore we should to establish the legal system of business transfer in our country.Whether adopting commercial mode, or Special law mode, in the concrete of the system construction, we should be under the guidance of pursuing benefit maximization, ensuring the fairness, security, efficiency and freedom of transaction, and then making sure the subjects to gain the peak-peak values from the transfer. In other words, firstly, detailing the "quality" and "quantity" standard synergy on the judgment of the business transfer. Secondly, stipulating the public company must be convoke the shareholders' meeting with passing a special resolution of the business transfer before take the action, and setting up the objection repurchase claim system for the shareholders of the limited liability company when business transfer. Thirdly, the scope of the target of business transfer should be decided by making up the parties'free will, so we can't provide mandatory provisions through our legislation. Fourthly, establishing priority system on credit assignor protection. Fifthly, setting up perfect registration and publication system of business transfer contract. Sixthly, establishing the non-competition rules of business transferor, and setting up some reasonable limits for the duty. Seventhly, establishing cautious assignee liability to protect potential infringement creditors and consumer interests.
Keywords/Search Tags:Business transfer, the registration and publication system, the equities of the related parties
PDF Full Text Request
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