| The concept of French electronic business assets (the "EBAs") is one of thenewest concepts studied in France. It is based on the concept of French traditionalbusiness assets (the "TBAs"). So the theory of TBAs is the theoretical principle ofEBAs. The concept of French electronic business assets is one of the most importantlegal concepts in French commercial law system. It derived from the traditional modeof business in the early19century and has had significant practical impact oncommerce. Then the French laws provided detailed provisions regarding its transferand mortgage. These provisions were subsequently absorbed into the FrenchCommercial Code. In fact, the business assets is formed when the company exert itscorporeal and incorporeal properties to attract clientèle (which means the aggregationof clients in French) and the clientèle become one of the business assets. Thus, theclientèle and those assets which have attracted the clientèle are formed as anaggregation, and this aggregation is what business assets stand for. Among theelements of this aggregation, the clientèle has crucial impacts on the formation andexistence of business assets. EBAs are the assets that one company has aggregatedduring its online business, the elements of which include websites, domain names,contracts and clientèle’s information, etc. In the meanwhile, these online clientsbelong to the company who has online business, not to the Internet Service Providers. As a result, we can come to the conclusion that online business can form electronicbusiness assets under certain conditions. And recent French law cases have become toconfirm the concept of EBAs.The interpretation of the concept of EBAs helps to further understand itspractical values. The value of EBAs mainly reflects in two aspects: theoretical valuesand operational values. In theory, we can distinguish business assets both traditionallyand electronically. In fact, the criterion of clients to distinguish these two businessassets is not sufficient in case that if the company runs both traditional shops andonline shops whose scopes of business are the same. In this case, one more criterionhas to be introduced: the realization of delivery in online shops. In practice, the valueof electronic business assets mainly reflects in property assignment and mortgage. Interms of assignment, discussion is needed regarding whether the assignment ofwebsites and domain names would trigger the assignment of the EBAs, as they areusually not included in the mortgage range of traditional business assets. Further, theFrench Commercial Code has provided precise provisions regarding the assignment ofthe EBAs. This made it possible to analyze the assignment of the EBAs on the basisof the assignment of the TBAs in order to conclude not only the unique factorsregarding the elements of the assignment of the EBAs, but also rights and dutiesbetween the parties, especially the non-competition duty undertaken by the assignor.In terms of mortgage, attention is attached to the difference between the TBAs and theEBAs in mortgage range and mortgage registration, in which the mortgage ofintellectual property rights is mainly discussed.The analysis on the concepts and values of the French EBAs helps to constructrelated commercial legal regime in China. In the first place, the concept of EBA canbe introduced to China regarding online business; the concept of clientèle andaggregation of property can also be introduced. The clientèle is the core element ofEBA. In the concept of property aggregation, debts and real estates are excluded.Secondly, laws and regulations are needed in terms of operation of EBAs: thedistinction between business assignment and asset acquisition, spectrum of effects inlight of the assignment of domain names, and the condition, announcement formalities and duties of assignors. Lastly, the EBA mortgage regime is also needed todefine the range and registration of mortgage property, especially the condition ofintellectual property mortgage. |
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