Legislative Study On The Creditor’s Rights Investment

The creditor’s rights investment as one of investment way,that refers to himself who can claim on the company or himself who can claim on the third party to invest when the company is in the process of establishment, either capital increase or reforming. This article will research the way of himself who claims on the company when the process of the company capital increase or reforming happened.The creditor’s rights can be treated as the property and can be transferable, according to some developed countries on legislation and judicial practice about creditor’s rights, the creditor’s rights investment is feasible. In addition, if those people who hold debt rather than money or property can be regarded as one kind of company investment way, then, to set up the company’s costs will be greatly reduced. Moreover, either the maximization of social wealth, the interests of the shareholders or varied the investment way or the characteristic of creditor’s right itself, which meets the original purpose of the company law. However, our legislation on allowing the creditor’s rights investment does not make a unified regulation. If the legislation allows the creditor’s rights investment existing, that should improve the system about how to control the legal risks and strengthen the responsibility of punishment.According to our legal level at present, the company law on the shareholder’s capital contribution form is a summarized rule, it does not list it as one of the creditor’s rights investment form, but the article fourteenth of the company law explained three draft and The trade and Industry Bureau of Zhejiang province in2010promulgated the’Zhejiang province company debt to equity registration management Interim Measures’and in January1,2012the State Administration for Industry and Commerce promulgated the’measures for the administration of registration of corporate debt to equity’all allow the creditor’s rights can be treated as the legal capital contribution form. Even these provisions are existing, but that cannot avoid the risk of creditor’s right investment yet.The legal risk of creditor’s rights mainly includes the following aspects:firstly, the achievement of creditor’s rights uncertainly; secondly, the conflict between the statute of limitation and the investment time; thirdly, the lack of value evaluation system of creditor’s rights investment; finally, lack of the accountability system of the creditor’s rights investment.However, due to the creditor’s rights in modern society plays the more important role, even if the various risks will be appear, allowing the creditor’s rights as a form of capital, is the necessity of economic development. Therefore, If the legislation of our country in the establishment allows the creditor’s rights investment, It should be improve in the design of the system. Firstly, which should be clear of the creditor’s rights investment species, Secondly, which should establish the disclosure system and the value evaluation system of the creditor’s rights investment. In addition, the voting system and the guarantee system and the proportion restriction system all should be clear and operable.Of course, the debt has value, but it belongs to the right of expectation, and it is uncertainty. So, to a certain extent, to improve the creditor’s rights investment system and strengthen the responsibility investigation system, which can prevent, eliminate the risk of creditor’s rights, and minimize the loss of stakeholders. Anyway, either the responsibility of the false capital shareholders, the debt stock shareholders, the other shareholders of the company or the assessment organ, the capital inspection organ, the registration organ, all should be clear.