Study On Protection Of Creditors’ Interests In Corporate Division

Corporate division, as one of the main methods of restructuring, is widely used in the practice of enterprise restructuring and reorganization in our country. As involving the debt transfer and corporate property change, corporate division would exert influence on debt repayments directly. In practice, the debt disputes over corporate division occurred regularly. Compared with legislation situation abroad, our country’s creditor protection mechanism in too simple and principle, which demonstrated in canceling the creditors objection system, and the existing system of information disclosure regulations and joint and several liability rules are not reasonable. From the standpoint of value orientation of legislation, the company law pay more attention to the freedom and efficiency value because of our country’s economic situation. However, the company law should also pursue the value of fairness and trade security. Therefore, it is necessary to perfect the creditor protection system in the corporate division, to balance the relationship between the separation efficiency and creditors.In the first chapter, this article would introduce the concept, way and legal effect of the corporate division, and reveal the impact of creditor protection. At the same time, this article would analysis the necessity of protecting the creditors’ interests from a macro level as well as the domain of the corporate division. Then, through the introduction in legislation of other countries or regions, this article found our country’s creditor protection system focus too much on freedom and efficiency value, instead of fair and safety value, and mainly reflected in the abolishing of creditors’ right of dissenting in company law in 2005. In addition, the existing system of information disclosure regulations and joint and several liability rules are not reasonable, so it is necessary to perfect our country’s basic system of creditor protection in corporate division.In the second chapter, this paper would mainly analysis on four aspects: the necessity of system settings, the perfection of information disclosure rules, the payment and guarantee limit when the creditors raise an objection, the legal effect of creditors objection system. First of all, through the summary of the existing theory point of view, analyze the necessity and importance of creditors’ dissent system. Secondly, by comparing the division information disclosure rules of domestic and overseas, it is recommended to draw lessons from foreign legislative experience and perfect on two aspects: public content and effectiveness. Again, in order to prevent the creditors to dissent blindly, it is recommended that the law should set condition for meet the creditors’ requirements. Finally, this paper would analysis the legal consequences when the creditors dissent or not dissent, as well as when the offending company refuse to pay off or guarantee.In the third chapter, this paper would mainly analysis on the necessity of system settings, and the applicable subject, scope, period of the system of joint and several liability. By comparing the legislation situation of our country and foreign countries, this paper found that the main provisions for the applicable subject is reasonable, but it is still need to limit the liability scope and duration for the balance the interests of the parties. Therefore, it is necessary to limit the liability scope and duration on the basis of referencing the legislation of countries or regions abroad. Specifically, the liability scope should be limited in "the scope of inherited property " or " range of net asset by the divided base date ", and responsibility duration should be limited to a reasonable period after division, for instance, five years.