公司重大资产转让法律问题刍议——以程序构建为中心

On the Legal Issues of Major Asset Transfer of a Company——Centered on Procedure Construction

重大资产转让是与营业转让具有等值功能的替代制度,在我国已经形成了零散的制度基础,在一定程度上实现着对公司营业与资产转让的规范功能。由于股份转换制度在我国并未普遍推广和应用,我国公司法对于重大资产转让的规定以资产出售居多,重大资产转让法律制度在现行公司法体系内仍未完整,缺失以重大资产转让客体法律界定为基础的程序性规范,使这一制度的应用范围和效果极为有限。围绕公司重大资产转让的程序性问题,对资产转让的客体——"营业""资产"的概念、特征及相互关系予以界定,提出以"质、量标准说"作为认定"全部或主要部分的营业或财产"的依据,对属于重大资产转让的公司行为,在发起阶段应明确发动与决策的权责分属于董事会与股东会,决议阶段实施有区别的绝对多数决,并配置异议股东的权益保障特别程序。

The transfer of major assets is an alternative system that has the equivalent function with the business transfer,and the scattered institutional basis has been formed in our country.To a certain extent,it realizes the regulatory function of the company＇s business and assets transfer.Since the share conversion system has not been popularized and applied in China,the regulation of the transfer of major assets is mainly for the sale of assets in our country＇s company law,the legal system of the transfer of major assets is still not complete in the current corporate law system.Due to the lack of procedural norms based on the legal definition of the object of the transfer of major assets,the application and effect of this system are very limited.This article is closely related to the procedural issues of the major assets transfer of the company,and form the definition of concept,features and relationships of＂business＂and＂assets＂which as the object of the transfer of assets,and propose the‘standard of quality and quantity＇as criteria for identifying the transfer of＂all or major parts of the business or property＂.For a company＇s behavior that belongs to a major asset transfer,it should be clear that the responsibilities and responsibilities of launching and decision-making belong to the board of directors and shareholders＇meetings at the launching stage.The resolution phase implements a distinct absolute majority resolution,and configure the special procedures for the protection of the rights and interests of dissenting shareholders.