公司营业转让法律问题研究
发布时间：2018-10-09 13:06
【摘要】：作为公司改变经营策略,变更经营范围的一种方式,营业转让经常适用于现代的公司商事活动中,例如影响比较深远的案例有联想收购工BM的个人电脑业务以及吉利收购沃尔沃等等。然而我国立法对于公司间的营业转让规定甚少而且使用的概念容易产生混淆,以至于人民法院在处理相关案件时候,常见做法是将公司间的营业转让认定为是公司合并、分立抑或是单纯的资产转让等行为,结果导致错误的判决结果的出现。 诚然,营业转让的概念与资产转让等概念有所关联,但是实质并非一样。该不同点主要在于权利义务指向的对象不一样。在公司营业转让中,转让的客体为具有整体性、组织性、变动性以及营业性特点的营业资产,其主要包括有积极资产和消极资产两个部分：积极资产主要为各种动产、不动产、权利(知识产权、债权)等；消极资产主要为公司的负债。 此外,营业转让是把双刃剑,无论是对于转让公司还是受让公司,营业转让为其带来的影响均十分巨大。为了规避风险,有必要对营业转让中当事人的权利义务加以梳理,明确当事人双方的权利义务内容。 在注重法律关系的实体内容的同时,对于法律行为的程序性事项也不可偏废。特别是在公司营业转让中,由于营业转让涉及到转让人的债权人利益,在法国等国家或地区的商法典中对于营业转让的程序性事项的内容规定的较为详细,值得我国借鉴。 在营业转让实务中,转让公司假借营业转让之名行逃避债务之实或是转让公司与受让公司串通使得转让公司之债权人受损,加之债权人虽与转让公司有利害关系但却无法如公司股东一般参与公司事务,影响公司决策,故而法律有必要在一定情况下要求受让公司承担转让公司的债务,以及赋予公司债权人以某些权利来保护自己享有的债权。
[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.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.291.91
本文编号：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.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.291.91
【引证文献】
相关硕士学位论文 前1条
1 张开志;营业转让中的债务承担规则研究[D];广东商学院;2013年
，本文编号：2259432
本文链接：https://www.wllwen.com/falvlunwen/jingjifalunwen/2259432.html
