Study On The Protection Of Creditors' Rights In Business Transfer

Business transfer is one of the important means of market resource allocation,but its content is complex,and business property is a collection and functional,its changes maybe affect the transfer of the profitability and solvency,and thus affects the realization of the interests of creditors.Therefore,it's necessary to give creditors special protection in commercial law.Up to now,China has not made the explicit stipulation on the business transfer,eihter not provided the special protection for business creditors.If the business transfer can not be adjusted through the perfect legal system,it is bound to lead to the relevant transaction can not be conductet on law,and the contradiction can not be dealt with effectively,affecting the safety and efficiency of commercial transactions.In order to regulate the business transfer relations,to protect the interests of creditors,this paper attempts to start from the basic concepts,through comparative analysis and theoretical analysis of the legislation inside and outside the region,refining the principles suited to China's commercial practice,puts forward some suggestions to improve China's relevant legislation.In addition to the introduction and conclusion,this paper is divided into five parts.The first and the second part,using method of concept analysis and logical analysis,correctly classifies the concept of business,business property and business transfer,clarifies the concept and the type of business debt,analyzes the real risk of creditors and the necessity of the protection,and expounds the theoretical basis of business transfer.The third part,combing the relevant existing legal sources,examining the guarantee and preservation of the debt in the traditional civil and commercial laws,and the system of creditor protection such as the right of revocation of the third party,and emphasizes and analyzes the general application in the judicial practice and interpretation.Through combing and analyzing,the author thinks that the existing law is not yet fully and effectively protect the interests of business creditors.The forth part,using methods of comparative analysis,historical research and other,comparative defferent countries' legislation on the operating debt burden rules,that the German and Japanese countries' legislation rules are inadequate,the French law which based on the principle that the provisions of the non-transfer of the debt is more reasonable,and similar as the principle in the United States law,and should be strengthen the protection of creditors from the view of procedural rights.The fifth part,puts forward the legislative conception of perfecting the protection of business creditors,and thinks that the creditor's right to know,dissent and increase the right of auction should be given from the procedural point of view,and the special protection system should be provided for different types of debt.Its also necessary for us to introduce the successor liability rules,to perfect the bond holder meeting system,to build a full range of business creditor interests protection system.