公司營業(yè)轉(zhuǎn)讓法律問題研究
發(fā)布時間：2018-10-09 13:06
【摘要】：作為公司改變經(jīng)營策略,變更經(jīng)營范圍的一種方式,營業(yè)轉(zhuǎn)讓經(jīng)常適用于現(xiàn)代的公司商事活動中,例如影響比較深遠的案例有聯(lián)想收購工BM的個人電腦業(yè)務(wù)以及吉利收購沃爾沃等等。然而我國立法對于公司間的營業(yè)轉(zhuǎn)讓規(guī)定甚少而且使用的概念容易產(chǎn)生混淆,以至于人民法院在處理相關(guān)案件時候,常見做法是將公司間的營業(yè)轉(zhuǎn)讓認定為是公司合并、分立抑或是單純的資產(chǎn)轉(zhuǎn)讓等行為,結(jié)果導致錯誤的判決結(jié)果的出現(xiàn)。 誠然,營業(yè)轉(zhuǎn)讓的概念與資產(chǎn)轉(zhuǎn)讓等概念有所關(guān)聯(lián),但是實質(zhì)并非一樣。該不同點主要在于權(quán)利義務(wù)指向的對象不一樣。在公司營業(yè)轉(zhuǎn)讓中,轉(zhuǎn)讓的客體為具有整體性、組織性、變動性以及營業(yè)性特點的營業(yè)資產(chǎn),其主要包括有積極資產(chǎn)和消極資產(chǎn)兩個部分：積極資產(chǎn)主要為各種動產(chǎn)、不動產(chǎn)、權(quán)利(知識產(chǎn)權(quán)、債權(quán))等；消極資產(chǎn)主要為公司的負債。 此外,營業(yè)轉(zhuǎn)讓是把雙刃劍,無論是對于轉(zhuǎn)讓公司還是受讓公司,營業(yè)轉(zhuǎn)讓為其帶來的影響均十分巨大。為了規(guī)避風險,有必要對營業(yè)轉(zhuǎn)讓中當事人的權(quán)利義務(wù)加以梳理,明確當事人雙方的權(quán)利義務(wù)內(nèi)容。 在注重法律關(guān)系的實體內(nèi)容的同時,對于法律行為的程序性事項也不可偏廢。特別是在公司營業(yè)轉(zhuǎn)讓中,由于營業(yè)轉(zhuǎn)讓涉及到轉(zhuǎn)讓人的債權(quán)人利益,在法國等國家或地區(qū)的商法典中對于營業(yè)轉(zhuǎn)讓的程序性事項的內(nèi)容規(guī)定的較為詳細,值得我國借鑒。 在營業(yè)轉(zhuǎn)讓實務(wù)中,轉(zhuǎn)讓公司假借營業(yè)轉(zhuǎn)讓之名行逃避債務(wù)之實或是轉(zhuǎn)讓公司與受讓公司串通使得轉(zhuǎn)讓公司之債權(quán)人受損,加之債權(quán)人雖與轉(zhuǎn)讓公司有利害關(guān)系但卻無法如公司股東一般參與公司事務(wù),影響公司決策,故而法律有必要在一定情況下要求受讓公司承擔轉(zhuǎn)讓公司的債務(wù),以及賦予公司債權(quán)人以某些權(quán)利來保護自己享有的債權(quán)。
[Abstract]:As a way for a company to change its business strategy and scope of business, business transfer is often used in modern company commercial activities. Among the more influential cases are Lenovo's acquisition of BM's PC business and Geely's acquisition of Volvo. However, the legislation of our country has very few regulations on inter-company business assignment and the concept used is easily confused, so that when people's courts deal with related cases, the common practice is to regard inter-company business transfer as a merger of companies. Separation or simple transfer of assets results in the emergence of wrong judgment results. To be sure, the concept of business transfer is related to the concept of asset transfer, but it is not the same in essence. This difference mainly lies in the fact that the object to which the rights and obligations are directed is different. In the business transfer of a company, the object of the transfer is the business assets with the characteristics of integrity, organization, variability and business, which mainly include two parts: positive assets and negative assets: active assets are mainly various movable assets, immovable property, and so on. Rights (intellectual property, claims), etc.; negative assets are mainly corporate liabilities. In addition, business transfer is a double-edged sword, whether for the transfer company or the transfer company, the impact of business transfer on it is very great. In order to avoid the risk, it is necessary to sort out the rights and obligations of the parties in the business assignment and to clarify the content of the rights and obligations of both parties. While paying attention to the substantive content of legal relations, the procedural matters of legal acts should not be biased. Especially in the business assignment of a company, since the business assignment involves the interests of the assignor's creditors, the content of the procedural matters of business assignment in the commercial codes of France and other countries or regions is more detailed, which is worthy of our country's reference. In the practice of business transfer, the transferring company evades its debts under the guise of business transfer or colludes with the transferring company to the detriment of the creditors of the transferring company, In addition, although the creditor has an interest in the transferring company, it cannot participate in the affairs of the company as generally as the shareholders of the company, thus affecting the decision of the company, so it is necessary for the law under certain circumstances to require the transferor company to bear the debts of the transferred company. And giving certain rights to corporate creditors to protect their claims.
【學位授予單位】：華中師范大學
【學位級別】：碩士
【學位授予年份】：2012
【分類號】：D922.291.91
本文編號：2259432
[Abstract]:As a way for a company to change its business strategy and scope of business, business transfer is often used in modern company commercial activities. Among the more influential cases are Lenovo's acquisition of BM's PC business and Geely's acquisition of Volvo. However, the legislation of our country has very few regulations on inter-company business assignment and the concept used is easily confused, so that when people's courts deal with related cases, the common practice is to regard inter-company business transfer as a merger of companies. Separation or simple transfer of assets results in the emergence of wrong judgment results. To be sure, the concept of business transfer is related to the concept of asset transfer, but it is not the same in essence. This difference mainly lies in the fact that the object to which the rights and obligations are directed is different. In the business transfer of a company, the object of the transfer is the business assets with the characteristics of integrity, organization, variability and business, which mainly include two parts: positive assets and negative assets: active assets are mainly various movable assets, immovable property, and so on. Rights (intellectual property, claims), etc.; negative assets are mainly corporate liabilities. In addition, business transfer is a double-edged sword, whether for the transfer company or the transfer company, the impact of business transfer on it is very great. In order to avoid the risk, it is necessary to sort out the rights and obligations of the parties in the business assignment and to clarify the content of the rights and obligations of both parties. While paying attention to the substantive content of legal relations, the procedural matters of legal acts should not be biased. Especially in the business assignment of a company, since the business assignment involves the interests of the assignor's creditors, the content of the procedural matters of business assignment in the commercial codes of France and other countries or regions is more detailed, which is worthy of our country's reference. In the practice of business transfer, the transferring company evades its debts under the guise of business transfer or colludes with the transferring company to the detriment of the creditors of the transferring company, In addition, although the creditor has an interest in the transferring company, it cannot participate in the affairs of the company as generally as the shareholders of the company, thus affecting the decision of the company, so it is necessary for the law under certain circumstances to require the transferor company to bear the debts of the transferred company. And giving certain rights to corporate creditors to protect their claims.
【學位授予單位】：華中師范大學
【學位級別】：碩士
【學位授予年份】：2012
【分類號】：D922.291.91
【引證文獻】
相關(guān)碩士學位論文 前1條
1 張開志;營業(yè)轉(zhuǎn)讓中的債務(wù)承擔規(guī)則研究[D];廣東商學院;2013年
，本文編號：2259432
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