Research On Legal Issues Of Business Transfer

The appearance of business transfer owns objective necessities. Law is based onreal life. Business system is based on the development of the market economy.Commercial subjects may encounter mismanagement or business transformation incommercial activities. In this case, it is impossible to realize the maximum ofinterests only by the realization of property. Meanwhile, in order to expand thebusiness scope, some subjects need to start a new business or introduce newresources. It will be more appealing if the resources are perfect assets collection in alarge scale with intangible assets such as customer base. Therefore, the two partieswill reach an agreement on the transfer. In essence, the formation of business transferis the concrete reflection of resource optimization and reasonable allocation in themarket. It will maximize the function of existing assets and promote the businesscommunication and improve economic returns.The behavior of business transfer meets the need of the development of marketeconomy with its particularity. Right-obligation relationship is becomingcomplicated. It involves the protection of the rights and interests of each party, thesuccession of right of contract, and the personnel arrangement of the creditors,debtor and related staff of transferor. That is, business transfer is beyond theadjusting capability of privacy; therefore, it should be standardized by law whichcauses the gradual formation of business transfer system. This system has beenimplemented in civil law countries a hundred year ago, such as Germany, France, etc.Although in different legislation pattern, the perfect system has been formed. InJapan, South Korea and Macao, this system is also regulated in commercial laws;Merchant Code in Macau is the most complete one. The system is also researcheddeeply in common law system countries which are usually carried out in precedent.So far, there is no code of commerce in China or special regulation on businesstransfer. The similar system only appears in administrative laws and regulations orlocal regulations. The adjustments of similar issues in the development of market economy law are mainly based on the above regulations. The system is in the lowrank of legislation and imperfect in legal regulation. Therefore, through the analysisof the system, the dissertation compared the related legislations in accordance withthe legal theory in order to construct a relatively complete business transfer systembased on Chinese situation. The study focused on the construction of specificregulations considering the execution and protection of the parties. On the basis ofbalancing the interests of parties and maximizing the application of existingregulations, the construction was realized.Proceeding from the definition of business transfer, the study defined the rangeof application of business transfer centered on the types of businesses in objectivesense. Take the internal decision process as example, the study focused on theanalysis of efficiency of transferors including the limits of authorities, the influenceof contract validity by the defects of the process and the protection of the interests ofinside shareholders. The external validity includes the validity to creditors oftransferors and the validity to debtors and mortgages. The legal relationshipsbetween transferor and assignee include non-compete rules, business defects rulesand the succession rules of contracts. The formal elements of business transfer that isthe necessity and significance of registration publicity are analyzed in thedissertation. Finally, the business transfer in special situations and compulsoryassessment system construction are discussed.