The Study Of The System Of Business Transfer

Business transfer is a commercial contract that transfers a profitable,organized functional property and factual relationship.The “business” in the business transfer must have a specific business purpose and an independent business function.It is not a simple combination of various properties,but is similar to the nature of the collection,emphasizing the internal connection between the various parts as a whole.The value of "business" is greater than the sum of the value of the various properties.The type of property rights in “business” is divided into positive and negative assets by scholars,and scholars are divided into possible components and necessary components.Although the specific classification criteria are not the same,the specific composition of the business property is not much different.This is mainly due to the different understanding of whether the debt belongs to the scope of business property.The scope of business property rights must be divided according to China's legal system of property rights,including the three major types of objects,rights and facts,the transferor's debt should not be included in the scope of property rights,the transferor and the transferee can only transfer The person's debt transfer is stipulated separately.In the business transfer,the assignor and the assignee usually enter into a business transfer contract.When “business” is transferred as a transfer subject,it should be regarded as an organic whole for transfer.However,in the specific part of the transfer contract,including the change of property rights,the transfer of bonds,the legal relationship of intangible property rights changes,they should follow their own independent changes in the rules of the legal rules.The effect of the transfer of property rights in the business transfer refers to that the movable property takes delivery as the effective element,the real property takes the registration as the effective element,and the transferor should bear the risk burden obligation.In the effect of the transfer of the debt,the transferor should pay for the material obligations and the rights guarantee obligations of the property,and the existence of a single individual property does not necessarily constitute the quality of the overall business property.With respect to the assignment of the transferor's claims,if the assignor fails to perform the obligation to notify the debtor,the transfer of the creditor's rights will not have legal effect on the debtor;on the transferor's debt,the transferor and the assignee have not transferred the business in respect of the debt issue.Under the circumstance that the contract stipulated in the contract,the assignor should be responsible for paying off the debt,and the assignee should not be liable for the debt before the transfer.The effect of changes in the rights of intangible property is that the transfer of firm names and goodwill is rather special.The transfer of a firm's name shall be “absolute transferivism,” in a business transfer,the firm's name should be transferred to the transferee along with the assignor's business.Transfer separately.The goodwill in the transfer of goodwill is essentially an intangible property of a company that bears a variety of factual relationships.The transferor should transfer all the factual relationships it can enjoy to the assignee as much as possible when transferring the goodwill.The special legal effects that arise from the organizational nature of business transfer mainly include two aspects: the transferor's obligation to prohibit business competition and the protection of laborer's rights and interests in the transfer of business.There are two different theories about the inevitability of the obligations arising from the obligation to infringe on business,and the “statutory obligations” view that,in order not to affect the effectiveness of the business transfer,the transferor must transfer its status as a business operator.However,this does not mean that the assignor cannot carry out new business.Inevitably,it is believed that whether or not the law expressly provides for a prohibition on business competition,the assignor should be subject to the obligations of non-competition.The "statutory obligations" is more in line with the legal requirements of the obligation of non-competition,because the transferor's obligations of non-competition are not absolute and inevitable,and the exchange of the status of the transferor and transferee operator does not imply that the transferor.Do not use new equipment and technologies to operate similar businesses.With regard to the protection of the rights and interests of workers,there are three doctrines: "of course followers," "voluntary followers," and "eclecticism."Of course successorism" means that unless the laborer expresses the intention of not inheriting the labor contract,the assignee must continue to receive the existing labor relations of the original business;"voluntary acceptanceism" refers to the full respect of the labor relations concerned.The principle of autonomy of the meaning is negotiated freely by the assignor and the assignee.“Eclecticism” means that the labor relationship is transferred together with the transferor's transfer of business,but the assignor and the assignee can excuse the labor contract by agreement.The successor."Eclecticism" is more in line with the internal legal protection of the rights and interests of workers in the transfer of business.Because the "eclecticism" emphasizes respect for the autonomy of the workers,it encourages support of the transferee in the transfer of business.In addition to socially unemployed persons,it is also possible to effectively prevent the transferor from indirectly dismissing employees using business transfer and safeguarding the lawful rights and interests of laborers.