Research On Several Issues Concerning The Transfer Of Commercial Business Assets

We express commercial operating assets by various forms. Since our countryacademic circles has yet been reached for a static concept?it is difficult for us toresearch dynamic problem about transfer. There is no special legislation forcommercial business assets transferring. Undercurrent law? only property righttransfer of state-owned enterprises can be regulate by law. There is no law in the fieldof private law. And theoretical studies and therefore did not get enough attentionand conduct.Civil law and commercial law have different concepts upon commercialoperating assets. Tradition civil law highly focuses on the concrete properties.Therefore the commercial assets are ruled by the Property Law while the intangibleones stipulated in the Intellectual Property Law, and Contract Law mainly definesclaims and debts. The kinds of concrete properties however are not more essential inmodern commercial practice, the properties can be defined as commercial operatingassets if only they are applied in business operation, no matter what forms theproperties take.The transfer of commercial operating assets should be approved, registered andpublicized by authorities. Although our law does not specify the shareholders or theboard of directors as an approving authority of commercial business assets transfer.Domestic and foreign legislators tend to shareholders as an approving authority ofcommercial business assets transfer. In main civil law and common law countries, thepublic registry system is a common way to protect the rights of creditors. Still, in thelight of validity of contract, such transfer will not be definitely invalid if there is noapproval from relative authorities, where the transferors should continue performingthe contract if the transferees are in good faith, but such unregistered transfer cannotagainst any third parties. Regarding the legal consequences of commercial operatingassets transfers, which take effort in both parties, the seller should undertake his dutyunder the non-compete agreement while the buyer should proceed with the labor agreement, besides the general obligations (delivery, defect warranty, payment) whichboth parties undertake in purchase agreement.Whether “debt should be transferred with the assets” becomes the mostcontroversial issue among commercial operating assets transfers. Even though theprinciple (debt should be transferred with the assets) aims at protecting the creditorsof losing their profits as well as preventing the debtor from escaping from their debts,the article herein believes such system is not perfect. As a result, the rule “debt shouldbe transferred with the assets” shall only be considered the exception of this “debtsshall not be transferred with properties” general rule. Furthermore, we should improveChinese public registry system of the transfer of property.