营业资产法律制度研究

A Study of Legal System on Operating Capital

营业资产在商法上的地位举足轻重。作为商法上的重要基础概念,它是揭示商主体和商行为含义的重要工具;作为商法上的特殊财产形式,营业财产具有整体性和有机性特征,明显区别于传统民法上的单一财产形式;作为商法上的重要制度,营业资产转让是转投资、增资扩股、公司合并、公司分立、股权转换、企业承包和租赁的基础交易形式;作为特别的商法现象,营业资产及转让具有特殊的成立要件和法律效力,不宜直接援用民法规则调整营业资产及转让。

The operating capital is in a significant position in commercial law. As a basic and important concept of commercial law, it is a principal tool of explaining the meaning of commercial subject and commercial act; as a special property form of commercial law, it has a character of unit and organism; as a important system of commercial law , the transfer of operating capital is the basic form of transfer of transferring investment, increasing Capital and enlarging share capital, corporate merger, corporate separation, stock right ＂transfer, contracted management and leasing of company and as particular phenomenon of commercial law, the operating capital and its transfer must be based on special establishing conditions and has special legal effectiveness. Therefore, it is not suitable to adjust the operating capital and its transfer by applying civil law principles directly.