【作者】 钟勇；

【导师】 王建平；

【作者基本信息】 四川大学 ， 法律， 2005， 硕士

【摘要】 本文通过对企业并购和债权的法律和经济特征进行分析,提出了企业并购的本质特征,是控制权的转移并进而导致债务随资产转移的概念,并从公平为前提的角度出发,论证了债权人利益保护的意义。通过对企业并购实践中,损害债权人利益的行为进行分析,提出了在企业并购中要对恶意并购进行责任追究,并借鉴公司法中的“揭开法人面纱理论”来约束并购企业行为的主张。 全文在理论分析的基础上,对企业并购中的债权保护,进行了理论设计,包括:对企业并购行为的事前审查,企业并购程序的规范化,企业并购中债权人应具有的各种权利,设立并购保证金等。在此基础上,提出了制定我国统一的《企业并购法》来弥补现行立法空白的建议。 本文的具体内容,可分为以下四个部分: 第一部分,介绍了企业并购和债权保护的相关概念和特征,分析了企业并购行为的意义和动因,阐述了对企业并购中涉及的个体债、社会债和国家债等的认识,总结了国内外关于企业并购中债权保护的立法现状,以及国内立法存在的主要问题。 第二部分,对企业并购中债权保护的相关法理进行了研究。首先在效益与公平两种视角下,选择公平作为本文的研究视角,并进而提出了债权人保护应适用的原则(即公平、诚实信用、平等保护、鼓励交易等原则)。其次,从债的相对性原理出发,进一步分析了企业并购行为中,控制权转移和债务转移理论。最后,将“揭开法人面纱理论”引入到了恶意企业并购的责任追究中来。 第三部分,对企业并购中债权保护的制度设计提出了构想。从并购前、并购中和并购后三个阶段,提出了程序规范要求,并提出了债权保护的保障措施。在企业并购前对并购人的资格和动机进行审查,在各阶段规范信息披露义务,更多还原

【Abstract】 Based on the analysis of laws on enterprise acquisition and debt and their economic characteristics, this thesis brought forward the nature of enterprise acquisition that is a concept of transferring control right and further the debts along with capital. It also discussed about the significance of protecting creditors’ rights from the angle of impartiality. By way of analyzing how creditors’ rights were damaged in the cases of enterprise acquisitions, this thesis held that responsibilities should be ascertained in vicious enterprise acquisitions and enterprise conductions should be restricted by taking advantage from the theory of "Unveiling Legal Person" in Company law.On the basis of theoretical analysis, the thesis carried out a theoretical design for the protection of creditors’ rights, which includes examination before acquiring enterprises, the standardization of enterprise acquisition process, the clarification of rights that creditors should possess and establishing acquisition deposits, etc. A suggestion to enact a unified Enterprise acquisition law is brought forward based on the analysises.The main body of this thesis can be divided into four parts:Part Ⅰ introduced the concepts and their characteristics related to enterprise acquisition and creditors’ rights protection, analyzed the significance and reasons of enterprise acquisition, explained the knowledge on individual debts, social debts and national debts concerned with enterprise acquisition, and concluded the currentlegislation about creditors’ rights protection both at home and abroad as well as the main legislation issues existed in China.Part II researched on the related laws and principles related to creditors’ rights protection concerned with enterprise acquisition. On one hand, between the two angles of benefits and impartiality, the author chose the latter as the research viewpoint and put forward the principles suitable for the protection of creditors’ rights, namely principles of impartiality, honesty, equal protection, encouraging transactions and so on. On the other, this part analyzed further the theories of control rights and debts transfer in enterprise acquisition starting from the relative principle of debt. Finally this part introduced the theory of "Unveiling the legal person" into ascertaining the responsibilities in vicious enterprise acquisition.Part III conceived of the system protecting creditors’ rights in enterprise acquisition. It brought forward the standardization requirements and measures protecting creditors’ rights by dividing the process of acquisition into three stages. At the first stage that is before the acquisition it pointed out that acquisition’s qualification and motivation should be examined and thus creditors can be endowed with rights to be informed, object and be relieved. Operation and associated transactions conducted by the acquired enterprise should be supervised in order to prevent any damage to creditors’ rights. Aiming to protect creditors’ rights further, the thesis also proposed to establish the acquisition deposit system.Part IV brought forward some suggestions on the practice concerned with legislation and justice of enterprise acquisition. It put forward the tentative plan of enacting a unified Enterprise acquisition law and the contents it should include, especially concentrating on the clauses for protecting creditors’ rights.Apart from the suggestions on legislation, the thesis also gave some suggestions as for the safeguard of lawsuits in enterprise acquisition. It pointed out that on the premises of supervising the process, well-intentioned acquisitions should be protected so as to promote social efficiency.更多还原