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Risk Analysis And System Design On Creditor's Rights Of Third Party Investment

Posted on:2019-03-02Degree:MasterType:Thesis
Country:ChinaCandidate:B ZhangFull Text:PDF
GTID:2416330596452404Subject:Economic Law
Abstract/Summary:PDF Full Text Request
With the continuous development of the commercial economy,the capital-element market is becoming more and more active,and the market investors are more and more urgent to the relaxation of capital controls and the permission of all kinds of property investment.In practice,the contribution of the creditor's rights of third party,is very important to vitalize the inventory of debt assets and promote the industrial investment.However,although Chinese company law has already experienced four times of amendment,and capital control has continued to relax,and the property form of legal capital contribution is also expanding,there is no clear prohibition or no legal recognition for whether the creditor's rights of third party can be funded.The vagueness on legal policy,not only has already caused the confusion of market participants,but also has caused the conservative attitude of the department of industrial and commercial registration,which eventually impaired the efficiency of resources allocation of capital market and investment enthusiasm.As the old saying goes,the one who know the situation is smart,and the one who can navigate the situation will win.Throughout the world,the reform of modern company law has become a kind of unstoppable tendency,and regulation relaxation and freedom promotion have become an essential feature of modern company law.Today,with the development of globalization,the rapid and sharp capital flow has incurred the regulation competition of capital system globally.The supply sidereformation of the capital system of the company law,is very important to promote the competitiveness of our country's capital market.And its success depends on whether it can timely response to market demands or not.By examining the foreign capital system,we can see that,in common law countries,the law will not easily interfere with the company's business decision-making freedom,as long as the director fully fulfill it's fiduciary duty to the company.In recent years,civil law countries have also made great reformation in their company law,aiming to promote their business freedom.Our company law reformation shall review the theoretical source of the difference between law indifference and practice enthusiasm towards the contribution of the creditor's rights of third party,and open the legal door for creditor's rights contribution timely,on the basis of building a perfect risk prevention mechanism.In addition to the introduction and conclusion,this paper is divided into five chapters.The first chapter is about the nature and legislation practice of the contribution of the creditor's rights of third party.First of all,this chapter clearly points out that contribution of the creditor's rights of third party is a kind of non-cash contributions,which plays an important role in utilizing the asset of credit right and improving the efficiency of capital market.Then,the chapter makes a review of the evolution process of our company's law on creditor's rights investment,from the explicit prohibition to no clear recognition or prohibition.And this chapter examines the apparently different situation between the debt-for-equity swap and contribution of the creditor's rights of third party in Chinese commercial registration practice.Finally,this paper introduces the legislation policy and system about the contribution of the creditor's rights of third party in the world's major countries from the Anglo-American law system to the continental law system,which provide enlightenment to us.The second chapter is about the eligibility and legal risk in the contribution of the creditor's rights of third party.The chapter first makes a research on the eligibility theory in the continental law,and holds the opinion that creditor's rights of third partymeets the requirement of eligibility.Then,the chapter makes a deep analyses in its special legal risk,on the premise that capital control is conducive to the protection of creditor's interests,pointing out that the arbitrariness of the creation and concealment of creditor's rights are the cause of legal risk.Finally,the chapter points out that there are two methods to reply to the its special risk,and Chinese company law shall changes from pre-control method to back-end control method in capital control,which means that Chinese company law shall allow shareholders make contribution by the creditor's rights of third party and make proper and elaborative rule to prevent potential legal risk.The third chapter is about concrete system design discussion.This chapter mainly discusses some controversial legislation problems,including the statutory type selection about the creditor's right permitted to be contributed,the standard to determine when the contribution is completed,whether to require the contributor to guarantee the realization of the creditor's right contributed,and the limitation on the proportion of creditor's right contribution.Based on the spirit of modern company law to relax regulation and respect business freedom,the paper calls for reducing artificial limitation in the legislation as much as possible,and respect the market participators' business decision under the premise of controllable risk.The fourth chapter is about risk prevention mechanism on the contribution of creditor's right.Firstly,the law shall build procedure mechanism about the creditor's right contribution.It means that,according to the company law and article of association,the company needs to perform the necessary internal procedures and shall offer its creditors transfer priority.In the meantime,the contributor shall fulfill its duty to inform the debtors about the contribution.Secondly,the price valuation about the creditor's right shall adopt British independent assessor model,which require the stock company receiving contribution of creditor's right shall file a valuation assessment offered by a third independent assessment agency.In regard to the asymmetric information problems which may occurred during the negotiation,this paper suggests introducing valuation adjustment clause to solve the problem.Then,the law shall build registration and publicity system,which can offer the potentialcounterparties enough information about the company's capital structure.Finally,the law shall establish responsibilities mechanism.To be specific,in combination with the existing provision of liability in company law,we should specify the legal liability of all parties in all kinds of situation,so as to implement back-end control.
Keywords/Search Tags:Make Capital Contribution by Creditor's Rights of Third Party, Legal Risk, Eligibility, Risk Control
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