从企业被购买式兼并的司法实践看企业隐形债务的承担主体

To ascertain the bearer of the veiled debts of an enterprise from the judicial practice involving take-over by purchase

购买式兼并是在建立现代企业制度进程中对企业进行改制的一种常见的兼并方式。购买式兼并的购买方取得被兼并企业的财产支付了相应对价，所承担的债务有明确的约定；经改制而重新注册成立的新公司企业资产、性质已发生变化，而非原有企业，故被改制的企业如发生有遗漏债务（产权评估时漏评或清理不彻底）或隐形债务（改制时被改制企业的财务账面不能反映），应由当地政府及其国有资产管理部门和其他相关部门合理解决。法院审理时应视具体情况将利害关系纳入诉讼，既要保护债权人利益，又要注意维护兼并方及改制企业的新生儿——经改制而组建的新公司的合法权益，以推动我国现代企业制度的建立。

Take-over by purchase is a common form in the enterprise reconstruction in the process of establishing the modern enterprise system.The purchaser has paid the consideration to the assests obtained from the enterprise which has been taken over,the debts it should undertake have been clearly stipulated in the agreement.The assests and the nature of the newly registered company after reconstruction have been changed and the company is not the same one as before.Should the enterprise reconstructed has debts which were omitted(not included during the evaluation of property or not completely liquidated)or veiled(not reflected in the account records of the cnterprise reconstructed when being reconstrueted),a reasonable settlement should be pursued by the local government and its department of State-owned assests adminstration and other departments related.The court concerned should order the interested party to join the bitigation and should protect the right of the purchaser and the new baby of the enterprise reconstructed— newly established company after reconstruction as well as the right of the creditor in order to push the establishment of the modern enterprise system of China.