企业公司化改组的法律性质及其表述

Legal Nature of Corporatization in China and its Expressions

企业公司化改组的法律性质取决于原企业的营业重组方式,可能是分立、合并、减资、分立与合并相结合或整体变更,也可能是营业转让或者未经法律承认的营业出资。以"净资产折股"等术语表述公司化改组,规避了出资类型限制和分立企业债务承担规则,使发起人向新公司转移原企业债务的行为合理化。在原企业债务纠纷中,企业改组的法律性质成为争议焦点。司法解释试图平衡新设公司与原企业债权人的利益,但其表述上的紊乱阻碍了司法政策的贯彻。公司化改组之表述及相关司法困境的法律根源在于:公司法对出资方式过度限制,民法通则等法律的分立企业债务承担规则过于严苛。

Generally speaking, corporatization of a state--owned enterprise （＂SOE＂） in China means converting a SOE into a limited liability company or a joint--stock limited company according to the Company Law of China. Its legal nature depends on the approach of restructuring, which could be division, merger, changing in the whole, transfer of business, or paying contribution with business. In most cases, corporatization is expressed as establishing a new company with contributions paid by a SOE or its own investor. Terms such as ＂converting the net asset of enterprise into shares＂ and ＂converting operating assets and debts of enterprise into shares＂ are usually used to describe the process. But neither ＂net asset＂ nor ＂operating assets and debts＂ is a lawful contribution under the Company Law. The first reason to use such expressions and terms may be that the newly established company intends to avoid the rules for division and merger, which require both the new company and the SOE to be jointly and severally liable for the obligations of the SOE. The second reason may be that the new company tries to avoid the rules for contribution, which do not acknowledge business contribution. When a creditor of the SOE which retains after its partial business corporatized into a new company claims her right and brings both the SOE and the new company to a court, the question of the legal nature of corporatization would arise. However, the expressions above often mislead the courts. Even the judicial interpretation from the Supreme People＇s Court also lost in the misreading of ＂converting net asset into shares＂. The conflicts and confusions between legislation, legal practices and expressions due to law itself. It is necessary to revise the rules for division and contribution in the Company Law of China.