Legislative Study On The Creditor's Rights Investment

Along with the development of market economy, the transaction is getting more and more frequent, and the economic status of the creditor's rights has obtained enormous enhancement. Just as the German scholar Brew hertz says:"The creditor's rights already were not the method to obtain the real right, it itself was the legal life goal, the right wants and the interest desire demonstrated by the creditor's rights are the economical purpose today. The economic value doesn't exist quietly in the real right, but moves from one creditor's rights to another creditor's rights constantly."The creditor's rights value shows greatly, so how do we make full use of the creditor's rights in order to promote our economic development? The creditor's rights investment is an effective good means. In the real life, the phenomena of creditor's rights investment are universal day by day, but Chinese law does not stipulate explicitly that the creditor's rights can be invested to the company. And there are quite few researches on the creditor's rights investment in the theoretical circle. Therefore, this paper selects the creditor's rights, an important carrier of social wealth, as the object of study, and carries on the discussion about the legislation of creditor's rights investment so as to adapt the demand of the real economic life and to satisfy the request of the company legislation in the future.The whole credit system of the company with capital at its core entrusted excessively the company's registered capital with the creditor's rights guarantee function, thus removed the unsafe creditor's rights to invest to the company. In fact, this imaginary guarantee function plays the role much difficultly in the concrete practice, the ability for the company to pay its debt may be more dependent on its actual assets, and the company asset takes a more vital effect to the company credit. In the company asset credit foundation, the creditor's rights with the property value are permitted to invest to the company so as to increase net assets and realize the management function. Along with capital credit's being disillusioned, the security value safeguarding the creditors'trades is substituted gradually by the efficiency value using fully the shareholder's investment resources, which could establish the value idea for the creditor's rights investment. Thus, the creditor's rights investment has not the theoretical barrier, and the creditor's right could enter the capital domain freely and create the society wealth.Because of the free ideological trend, countries of the UK-US legal system limit few the investment forms and generally permit the creditor's rights investment. The countries and areas of the mainland legal system mostly limit the creditor's rights investment in order to protect the company creditors'rights and the transaction security, but have a more tolerant manner in the recent years. Through the two big legal system's comparative analysis, we can draw the conclusion: To relax the shareholder's investment type and to allow the creditor's rights investment under the controlled condition is the development trend of the modern company law. Our country complies with this trend, meets the objective requests of economic life and revises the investment system. The company law has relaxed shareholder's investment forms, but still does not stipulate explicitly the creditor's rights investment, which does not adapt the present situation of the massive creditor's rights investment.In view of above analysis, the responsibility of legislators on the company is to meet comply the needs of our practice, absorb the best foreign legislation, and make reasonable legislation design of the creditor's rights investment. Firstly, under the legislation principles'instruction, it is clear about the creditor's rights investment type, and the general theory of the transference of creditor's rights unifies the characteristics of the creditor's rights investment in order to formulate specific and suitable rules of creditor's rights investment, which can deal with the questions in the creditor's rights investment practice, like the delivery of rights, the part and dual transference of the creditor's rights, the debtor's demur rights as well as the creditor's rights investment proportion and so on. In addition, the creditor's rights are the request right, with uncertainty arbitrariness and concealment, which is prone to lead false, the slight defect and elimination and other risks. For this reason, we should improve the systems and measures like the difference to pay responsibility, the liability for breach of contract, the obligation of warranty as well as the publicity, capital assessment and verification of the creditor's rights investment so as to falls the creditor's rights investment risk to the lowest level. That displays its advantage, but eliminates its shortcoming.