The company incorporates is to show two above company decides a program to comprise the legal action 〔 that is a company lawfully commonly 1 〕 . Above all it is needed with two or the company presence of two above is premise; next, answer to undertake by due legal process, this basically is the change of the combines not to cause the company before incorporating only right obligation as a result of the company, and the interest; that passes experience to the civil principal part that has relevant right obligation with these companies again, amalgamative result is many companies synthesize a company, qualification of original company principal part may be all ground disappears already, make a brand-new principal part thereby, also may be among them reservation of qualification of a main body, the legal character; that the others main body all loses independence is final, it is a kind of individual contract action. The such as that it needs common contract to hold water already talks things over, reach of one’s own accord acceptability wait for a condition, but it has its specialty again. It is it must be made with written form, even some countries still ask must notarial 〔 2 〕 , and have conclude than common contract the accredit with stricter requirement, the partner that wants classics company namely is met with special vote the program is made vote; 2 be contract award is not average belongings move, however the mixture move of the creditor’s rights debt with complex content or reset; 3 it is the principle that it broke through bond of the ” in traditional civil law to have ” (Privity) only, the implementation of the right obligation of company amalgamative contract affects the interest of the 3rd person beyond party, accordingly the fair judicatory of some countries stipulates this kind of contract is unwell clearly the contracted regulation 〔 in be in charge of with civil code 3 〕 .
The form that the firm combines to be different from a company is changed (or the organization that weighs a company changes) , latter is the commutation that points to company sort, if infinite company turns into two companies, finite liability company turns into Inc. . Both distinction, the basiccest is the company incorporates with two or the company of two above is premise, and the change that the formal change of the company is itself of a company.
The company is amalgamative also have not at the enterprise (company) form industry group because of combination (company group) , this kind of combination is with two or the company of two above is premise, but all incorporates with the company commonly as a result result that its combine is different. Because company group is through accusing, unifinication of company contract, enterprise, mutual share, leader is held part-time each other, the way such as collective leader orgnaization holds water to form between the enterprise, the company before these ways give collectivize withheld qualification of legal person main body, the result that reason turns jointly is not onefold corporative form, if gift,company group can bring about two class corporative to appear with corporate organization.
Amalgamative also cannot be equal simply at annex. Although ” is amalgamative ” of annex of ” , ” is outer the country often is used alternately in company method, but latter often shows one company is another company (put add square) be absorbed, just be lost by annex namely legal character, and the law that the company that put add still regards independence as is hypostatic and exist. Can say, annex is a kind of amalgamative case, because incorporate,still included the case that the legal character of all companies before incorporating all disappears, form a company that has new law moral quality thereby, this one process does not have the company that put add. From method of our country company the 184th regulation looks, amalgamative ” of so divisional ” and ” annex ” compare suit actual, have both confuse sth with sth else simply the requirement that is contrary to to reach legislation at the acceptation of Chinese.
According to company amalgamative pattern different, method of each country company is amalgamative cent two kinds mostly: It is to be set newly amalgamative, point to two or the company amalgamative composition of two above a new company, all participation amalgamative company all eliminates; 2 it is to absorb amalgamative, show one company is absorbed by another company add up at among them, company be absorptioned is eliminated, absorb a company to put add and expand, this kind incorporates can call annex again.
Very apparent, the company is amalgamative can enlarge company dimensions, enhance economic actual strength, raise competitive ability; to still can consolidate concerned department, still can improve the beneficial result of asset in order to improve the company with small utilization rate of resource of; of manufacturing management efficiency via incorporating. But of the company incorporating is by no means only the thing of company itself, still involve the increase of creditor and social community on very old rate, what is more,the rather that the company is amalgamative exceed certain limit, can form forestall, cloggy fairness competes. Because of this, method of each country company combines system of native and specific economy and legal tradition, amalgamative to the company the limitation that made different pitch and special requirement, and also have on implementation program relatively systematic compasses is made.
The condition with company amalgamative implementation and restricted requirement basically behave in the following respects:
One of, to the limitation on sort of amalgamative around company. Some countries are right of finite liability company incorporated necessary limitation, if Germany stipulates Inc. can receive finite liability company, but finite liability company cannot receive Inc. 〔 4 〕 . The company sort that the amalgamative place that some countries participate in to finite liability company forms has restriction, be like Japan ” limited company ” the 59th regulation, limited company can incorporate with other limited company, but the company that add puts after incorporating or the company that create because of incorporating, must be limited company; the 60th regulation, limited company is as amalgamative as another Inc. , answer to be approbated via the court, disable otherwise. Switzerland prohibits completely finite liability company and company of other and finite liability or Inc. are amalgamative.
Secondly, the most ay that participates in amalgamative each company to must need in order to pass special resolution place via respective shareholder plenary meeting agrees with amalgamative plan, reach for the foundation with this amalgamative each amalgamative agreement between. Because incorporate,this is it is the major legislation behaviour that causes company assets to be configured afresh, also close the rights and interests of experience partner directly, because this each country is common,judicatory has this demand. Be like ” law of confederative Germany Inc. ” those who set Inc. is amalgamative, must ask for those who get 3/4 partner to agree. France ” method of trade issue company ” also ask concerned company should press modification constitution place to require a condition, amalgamative to the company make a decision, the 153rd modification that points out pair of constitution wants this way via special shareholder plenary meeting, the three ballots that the bill that this kind of congress is attended with obtaining or has by the partner that other acts as agent counts make a decision. Method of our country company also sets, shareholder of finite liability company will be amalgamative to the company when making resolution, the partner that must count via representing 2/3 above to vote agrees to pass, and the state-owned and solely invested company that did not set partner to meet, the orgnaization that must invest by national authorization or the sectional decision of national authorization. Participating in amalgamative each company to pass after concerning amalgamative plan, reach written and amalgamative contract via each agreement. Method of German joint-stock company asks amalgamative contract is due even a notarial deed, emphasize ” civil code is in charge of ” the 310th regulation is not applicable and amalgamative contract 〔 5 〕 .
Thirdly, the requirement that upholds to sharing incorporated company loan interest. The new configuration of the assets of amalgamative since company of the company, also be the new conformity of company creditor’s rights, debt, because this amalgamative effect closes experience to arrive,participate in amalgamative debenture authority, debtor, especially the interest of creditor may be damaged because of incorporating. So method of each country company has the maintains loan interest regulation of different level. Japan ” code of mercantile law ” established system of ” of ” creditor demur the 100th times. France ” method of trade issue company ” incorporate inside the time limit that also can set company creditor ” in the law draft demur ” . ” law of confederative Germany joint-stock company ” the clause of creditor of not only protection, still established for ” of ” prerogative everybody only: “The exchangeable bond that receives a company to should make over a company to issue to hold, gain bond and be benefited each right that authority certificate holder offers the right in be equal to make over a company at be in. “Of course, law also has limit to the maintenance of loan interest, this basically behaves for: On one hand the exception that method of each country company often provides loan is not had prohibit incorporating the; of 〕 of effectiveness 〔 6 of the program is opposite on the other hand creditor demur is terminable also, decide in the law only namely demur 〔 just can be carried inside deadline 7 〕 .
In addition, each country is in concerned company according to its national condition (enterprise) the restriction that there still is sex of a few policies in amalgamative code. Because the company is amalgamative,with the market competitive order photograph binds, the amalgamative; that the antitrust law of a few countries prohibits causing forestall effect is opposite reason as germane as the national economy and the people’s livelihood company, be like bank, fiducial, railroad, aviation, electric power, gas those who wait for a company is amalgamative, also ask to ask for some approval; countries that get administrator sign to be opposite in special law beforehand the property after the company is amalgamative was made mandatory 8 〕 of formulary 〔 . If method of our country company sets: Finite liability company and Inc. are amalgamative, must via the branch of accredit of the State Council government of provincial perhaps people is approved.