Legal Regulation On The Risk Of Creditor’s Rights Investment

The State Administration for Industry and Commerce announced the measures theregistration of company debt to equity in November23,2011, the management measuresto the debt for equity swap provides three kinds of situations, these three cases are allabout the company’s debt to equity, and not related to the claims of the third party to onthe company’s equity. In reality, the debt to equity is very common, not only includingthree cases stipulated in the management measures. In third person claims to thecompany’s equity, it is likely to encounter in real life, but in actual judicial practice is adifficult problem to solve. How to regulate in the third person’s debt for equity swap,"not" provisions of the company law, other administrative regulations, departmental rulesand normative documents, and there is no provision. Therefore, it is necessary for us tothird claims to the provisions on the legislation on the company’s equity, in order to solvemay appear in the reality of the "may not" situation or in the judicial practice of the courton the case of the confusion and helplessness. The focus of this research is to establish aset of perfect risk prevention mechanism (the importance of institutional constraints andprocedural), so as to standardize the creditor’s rights investment (especially in the thirdperson claim to ownership) to. Apart from the introduction and conclusion, this paperincludes four parts, each part has its own emphasis, this paper analyzes and expounds theemphasis on logic and integrity.The first part: first elaborated the concept of creditor’s rights and the concept of thecreditor’s rights investment, then the creditor’s rights investment has carried on thesimple classification, mainly divided into two kinds of situations. One is usually to debtto equity, another is the third person claim to ownership. On the basis of the classificationabove, respectively expounds two kinds of debt to equity theory basis and reality basis. The second part: the history of development of practice based on our country aboutthe debt for equity swap, the focus is on China’s policy of debt, although its legitimacy ischallenged at the time, but for China’s future debt into equity, especially commercial debtfor equity swap offer reliable experience and important reference. History shows that,China is changing for the debt for equity swap attitude, from the beginning of the ban, todisagree, to partially allowed. This change in attitude, to stipulate the creditor’s rightsinvestment (especially the third claims to ownership)to provide a reference and apossible.The third part: mainly elaborated the countries of Anglo American law system andcontinental law countries (regions) of the relevant provisions of the law of debt to equity,including some specific laws and judicial precedents. The countries of Anglo Americanlaw system to the debt for equity swap is allowed, including third party claims to thecompany’s equity. Civil law countries (regions) is on the contrary, the debt for equityswap attitude is still partly permitted, partial bans. No part, is mainly to the third personclaim to ownership. Based on the research of common law countries, legislation andjudicial practice, we can draw some beneficial enlightenment, also can learn from.The fourth part: mainly elaborated various creditor’s rights investment risks. Therequest of the creditor’s claims, non openness, creditor’s right, creditor’s rights is difficultto assess the arbitrariness and claims of concealment, these five aspects are the creditor’sright has its own characteristics. All brought to five characteristics of the claims of thelikely investment risk, we need to guard against risk, and set up a set of perfectprevention mechanism. The prevention mechanism is mainly based on the system ofprevention, emphasizing the procedure, to strengthen the creditor’s rights investmentrelated to the interests of the main responsibility.