商铺转让费法律问题研究

发布时间：2019-01-06 12:48

【摘要】：商铺转让费,作为市场经济的产物、现行的商铺租赁市场的“潜规则”,而被人们所熟知。随着商铺租赁纠纷的增多,仅用经济现象解释其存在并不能解决该种纠纷,必须将此概念引入到法学领域,通过分析其法律性质而明确它的内涵和外延。商铺转让费所支付的对价,即不是对优先承租权的购买,也不是租赁合同权利义务的概况转让,它包括但不限于营业资产的转让；它的内涵应该根据收取与支付商铺转让费的权利义务双方的意思表示而具体确定,但是我们可以将其构成类型化。当出现商铺转让费纠纷时套用它的动态构成而分析其最终的归属问题,即应当以租赁合同的效力及履行情况为基础,然后再根据其在订立合同时对商铺转让费构成的意思表示来确定之,而不能仅依据其成立基础的转租合同的履行情况统一处理。本文分五个部分对商铺转让费的法律性质及相关法律问题进行研究。在第一部分,即本文的第一、二章,通过将商铺转让费类型化及其分析其特点确定商铺转让费的法律性质,明确商铺转让费的动态构成；第二部分,即第三章,通过引入审判实践中商铺转让费纠纷典型案例来说明在审判实务中,关于此问题的处理意见,然后再分析此种处理的弊端及其矛盾所在,并总结我国的商铺转让费纠纷法律及理论空白；在第三部分中,即第四、五章,根据商铺转让费纠纷的解决机制,首先应当根据含有商铺转让费的租赁合同中法律关系的个数将其类型化进而划分其纠纷成因的法律关系,然定再根据不同的纠纷类型将其进行具体分析将商铺转让费的性质分析运用到当前的审判实践中,具体解决其焦点问题。
[Abstract]:As the product of market economy, the current "latent rules" of commercial leasing market are well known. With the increase of commercial leasing disputes, it is not possible to solve this kind of disputes only by economic phenomena. It is necessary to introduce this concept into the field of law, and to clarify its connotation and extension by analyzing its legal nature. The consideration paid by the transfer fee is neither the purchase of the priority lease right nor the general assignment of the rights and obligations of the lease contract, which includes but is not limited to the transfer of the business assets; Its connotation should be determined according to the expression of intention between the right and obligation to collect and pay the transfer fee, but we can classify it. When there is a dispute over the transfer fee of a shop, its dynamic composition is applied to analyze its ultimate attribution problem, that is, it should be based on the validity and performance of the lease contract. Then it can be determined according to the expression of intention of the transfer fee of the shop at the time of the conclusion of the contract, and can not only be dealt with according to the performance of the sublease contract on the basis of which it is established. This paper is divided into five parts to study the legal nature and related legal problems of the transfer fee. In the first part, that is, the first and second chapters of this paper, through the typology of shop transfer fee and its analysis of its characteristics to determine the legal nature of the shop transfer fee, make clear the dynamic composition of the shop transfer fee; The second part, the third chapter, through the introduction of the typical case of the transfer fee dispute in the trial practice to explain the treatment of this problem in the trial practice, and then analyze the drawbacks and contradictions of this treatment. And summarizes the legal and theoretical blank in the disputes of the transfer fee of shops in our country; In the third part, that is, the fourth and fifth chapters, according to the settlement mechanism of the disputes on the transfer fee of shops, we should first of all classify the types of the disputes according to the number of legal relations in the lease contracts containing the transfer fees of shops, and then divide the legal relations of the causes of the disputes. However, according to the different types of disputes, the author makes a concrete analysis and applies the nature analysis of the transfer fee to the current trial practice to solve the focus problem.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.6

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