The Research On The Interests Of Creditor Protection In Business Transfers

The legal system of the business is one of the most important systems in Commercial Law, which maintains the status as the general rule. The commercial practices prove that the business not only functions as the simple summation of the separate elements, but a system of going concern value. The transfer of the business as a whole entity is beneficial for the transferee and the transferor since that can maintain the value of the immaterial property during the transference. The transferor would be financed more and the transferee would attain a quick way to start his business with less loss of the clients.The comprehensive rules of the business are embodied in the major national Commercial Code, as that of the Japan, German, Macau and the France. But in our country, there are little systematic legal rules of the business, especially of the creditor's rights. During the process of business transfer, the interests of the transferee's creditor suffer more risk. Otherwise, the ways provided by the Contract Law for the creditor does not function effectively because of the irrecoverable traits of the immaterial property. The partnership law and enterprise law is weak on the protection of the creditor's rights, especially for the creditors of the enterprises with no legal personality. Therefore, specific commercial rules of the business are supposed to distribute the risk and protect the interests of the creditor essentially.In this paper, the structure is divided in to five parts:The first part introduces the institution of business transfer, and points out that business transfer is used widely in the commercial practices. But since of the absence of the related regulations in our country, we cannot recognize the business transfer legal relation out of the civil contract legal relation distinctly, consequently, the legal interests of the participants fails to be protected comprehensively, so does that of the transferee's creditors.The second part introduces the specialties of business property and business transfer, focusing on the differences with asset-purchase and stock-purchase. The business property involves the transferee's debts. The business is the security of debts and the transfer is deemed to increase the creditor's risk without payment. The protection of existing creditors to sort out the legal system, derived the existing legal system cannot meet the business needs of the conclusion to protect the transfer of creditors. We need to review and learn from the major national Commercial Code in order to build our legal system to protect the interests of the creditors.The third part reviews the rules of the business transfer in the major national Commercial Code and comments on Germany, Japan, French and Macau rules of the protection of the creditors. With more emphasis on the preventive action French rules protect the creditor's interests on procedure. Germany and Japan focuses on the distribution of substantive responsibility instead of the contract legal validity, whose rules differs in accordance with the heritage of the business' commercial title by the transferor. In this part, we demonstrate the legal base behind the responsibility of the transferor-Rechtsschein Theories and the nature of the transferor's responsibility-unreal joint responsibility.The forth part reviews the rules and regulations about the creditor's protection in the business transfer in our country and figures out its unreasonable legal base. The fifth part constructs the legislation structure of creditor protection in the business transfer. It includes two sections. The first section demonstrates we shall enact a "General Commercial" beyond the separation of civil and commercial code. The second section demonstrates we shall adopt the procedural protection and substantive responsibility protection to ensure the legitimate rights and interests of the creditors.