Content abstract: Method of our country company incorporates the 184th times to the company in made principle provision to the protection of creditor, according to this
Regulation, creditor incorporates in the company in the relief request right that enjoys know authority, pay off or the request authority that assure, right to damage. According to active law provision, absorbing amalgamative circumstance to fall to enjoy pay off or assure the loan limits that requests authority is too big, the efficiency; company with amalgamative influence breaks the law how is loan interest protected to lack specific provision after incorporating. The author thinks, answer creditor to accept modest protection principle, the regulation that in incorporating about the company in fair to our country judicatory, protects to creditor gives amend and perfect.
Keyword: Limits of loan of protection of company amalgamative creditor breaks the law after incorporating, protect moderately
The company is amalgamative in it is to the protection of creditor compasses the serious content that makes company amalgamative action, method of our country company already also had corresponding regulation to this, the article tries to incorporate from the interest safeguard of company creditor and company set out to the influence of creditor, the regulation that in analysing active law to incorporate about the company, protects to creditor and inadequacy, pay off is enjoyed when incorporating with respect to the company or assure those who request the loan limits of authority is affirmatory reach a company to violate the to creditor protection after incorporating two respects question is right company legislation offers a few views and proposal.
One, the company is amalgamative with loan interest
(One) the interest safeguard of company creditor
The company serves as the basic form of contemporary company, it is its responsibility form with finite responsibility.  is in the development of market economy, how to satisfy an industry already the interest of contributive person, satisfy the interest of company creditor again, this is a difficult problem that system of law of law of enterprises designs. If want the contributive person of the enterprise to assume overweight responsibility, cannot stimulate the initiative that contributive person invests, cannot promote the development of market economy. Same, if cannot make the interest of company creditor gets coming true, creditor has assumed big risk, crisis of ” of occurrence “ credence, develop the health that affects market economy directly. And the design that corporation law system adopts systems of pair of company legal person solved this difficult problem, on one hand as above, after making contributive person becomes firm partner, enjoy equity only, control its to throw the belongings of the company directly no longer, assume finite responsibility; thereby on the other hand, company with its total assets is in charge of to company creditor, make the interest of company creditor gets ensuring.  consequently, the total assets that related to joys and sorrows of loan interest safeguard is a company is complete.
(2) the company incorporates the influence of pair of loan interests
Method of company of according to our country the 184th the first section provision, the company is amalgamative and OK adopt absorb incorporate and set newly amalgamative two kinds of forms. The company of two kinds of forms is amalgamative different to the influence of loan interest. Absorb amalgamative will make be merged into to incorporate by the total assets of amalgamative company company, creditor of company be incorporatinged went back on his word to produce move in order to ensure the total assets of the company be incorporatinged of its interest, the interest; that affects loan of company be incorporatinged possibly counterpoises to amalgamative debenture the person, amalgamative company pays pair of price to incorporate, although the asset configuration of amalgamative company can produce a few change, but the total assets of amalgamative company still true and complete, amalgamative not big to loan interest impact. Set newly amalgamative will make amalgamative each total assets of square company merges into set a company newly, amalgamative each square company creditor Lai Yibao barrier of its interest amalgamative the total assets of each company produced move, the likelihood is affected amalgamative the interest of each square company creditor. Consequently, absorb incorporate impacts of pair of interest of loan of company be incorporatinged are bigger, set newly amalgamative to incorporating interest of each square company loan is affected bigger.
2, the active law provision that in incorporating about the company, protects to creditor and method of company of insufficient our country set the 184th times:
“ company is amalgamative and OK adopt absorb incorporate and set newly amalgamative two kinds of forms.
A company absorbs other company to incorporate to absorb, the company that is drawn is disbanded. 2 above company is amalgamative establish a new company to incorporate to be set newly, amalgamative each just are disbanded.
The company is amalgamative, ought to by amalgamative each just sign amalgamative agreement, weave the balance sheet reachs belongings detailed list. The company ought to have loan of the 10 announcements inside day from the day that makes amalgamative resolution, go up in newspaper within 30 days at least announcement 3. Creditor rises 30 days from the day that receives notice inside, the from first time announcement day that did not receive notice rises 90 days inside, debt of pay off of company of requirement having right perhaps is offerred assure accordingly. Not pay off debt perhaps does not offer what assure accordingly, the company must not incorporate.
When the company is amalgamative, amalgamative each square creditor’s rights, debt, the company adopt one’s brother’s son that ought to set newly perhaps by the company that add puts after incorporating. ”
The to creditor protection when this regulation incorporates for the company decided basic principle, creditor the relief request right that in the company the right that in incorporating, enjoys includes pay off or the know authority, request authority that assure, right to damage, according to sets this, afore-mentioned rights of creditor all got fair statute is ensured, detailed cent narrates as follows:
(One) know counterpoises
Incorporate in the company namely in the course that debtor changes, creditor enjoys know right. Method of company of according to our country the 184th the 3rd section provision, “ company ought to have loan of the 10 announcements inside day from the day that makes amalgamative resolution, go up in newspaper inside 30 days at least announcement 3. ”
Each country legislation adopts declared form generally to tell creditor, whether should still inform creditor to set with noticing pattern individually differ. Afore-mentioned regulations of method of company of according to our country, should undertake individual announcement to foregone creditor, no matter far and near of creditor’s rights size, journey. In addition, our country contract law sets the 84th times: “ debtor perhaps is changed the 3rd person partly entirely, ought to agree via creditor. ” contract law sets the 88th times: The other side of classics of “ party one party agrees, can mix oneself in the right in the contract obligation transfers the 3rd person along with all the others. ” so, it is the law definition Wu that amalgamative company regards debtor as to the individual announcement of creditor, to foregone creditor, amalgamative company must undertake an announcement individually. Right potential or the creditor that because the address is unspecified,waits for a reason to cannot inform, answer to undertake announcement with announcement means.
(2) pay off or the request that assure counterpoise
Method of our country company the 184th the 3rd section provision, “ creditor rises 30 days from the day that receives notice inside, the from first time announcement day that did not receive notice rises 90 days inside, debt of pay off of company of requirement having right perhaps is offerred assure accordingly. Not pay off debt perhaps does not offer what assure accordingly, the company must not incorporate. ”According to sets this, creditor is amalgamative to the company put when disagreeing, enjoy a requirement to the company undertakes pay off to its or provide the request power that assures accordingly.
Creditor is amalgamative to the company put disagree, to the creditor’s rights that already expired, can ask amalgamative company gives pay off, can ask to offer only to undue creditor’s rights assure, must not advocate instantly pay off, because this will harm the time interest of debtor. Incorporate in the company only each just cannot offer the circumstance that assure to fall, creditor’s rights talent is tenable instantly pay off. Of course, if creditor agrees, also can offer only to the creditor’s rights that already expired assure, if debtor agrees, also can shift to an earlier date to undue creditor’s rights pay off, but should deduct undue interest. Because incorporate,like creditor former some assures and suffer an effect, can ask change assures or give pay off.  creditor should be decided in the law during inside exercise pay off or the request authority that assure, regard as otherwise agree to incorporate, method of company of according to our country the 184th the 3rd section provision, pay off of loan demand company or offer the request that assure to should be since the day that receives an announcement 30 days inside or since the day of first time announcement inside 90 days (did not receive communicant) put forward.
(3) the relief request that the right damages counterpoises
Method of our country company the 184th the 4th section provision, when “ company is amalgamative, amalgamative each square creditor’s rights, debt, the ” of company adopt one’s brother’s son that ought to set newly perhaps by the company that add puts after incorporating. According to sets this, if the right damage of creditor is killed, the company that can set newly perhaps to the company that add puts after incorporating after debtor company is amalgamative is recovered.