영업양도에 따른 채권자보호에 대한 중국법제와판례의 검토- 한국 상법(총론)과의 간단한 비교를 통하여 -

In the case of China, the state-owned enterprise law system has long been a key issue in the application of corporate law. In addition, because the civil law and commercial law have the characteristic of being a unified legal system, commercial law has not only not been activated, but is also not unified and is dispersed. In particular, since the law regarding business transfer was left blank from the beginning, in practice there has been a heavy reliance on the interpretations of scholars and court precedents. Chinese theories on the concept and legal nature of business transfers are similar to those of Korean scholars. However, since there was no source of the law for the transfer of business, there were the following problems with the application of the law. For example, laws and regulations regarding state-owned enterprises were often applied analogically to the business transfers, and the provisions on the mutual transfer of business were applied to the transfer of business, and the provisions on the transfer of important assets under the Corporate Act were applied to the transfer of business. In addition, there were also illegal cases of transferring a business license for the purpose of transferring business. The Chinese court also ruled on the transfer of business by applying the provisions on the sale (purchase) of state-owned enterprises to the transfer of business due to defects in the explicit source of the law, or there were precedents for such cases using the transfer of stock rights or the merger system. Applying a completely different legal system to the transfer of business in this way is fundamentally problematic in that it undermines the basic principle of transaction law, the autonomy of the parties. Recently, the Chinese Civil Code (May 28, 2020) and the Company Law (December 29, 2023) were recently revised, but it is very regrettable that neither of them has a basis for the transfer of business, leaving a legal vacuum. In the case of Korea, there are five provisions in the General Rules of the Commercial Code for Business Transfer, and these provisions are mainly regulated with a focus on the autonomy of the parties involved. In addition, in cases where the transferee of business is responsible for forming an appearance, a method is taken to protect creditors by imposing responsibility on the transferee. In addition, there are several provisions on the corporate Section that adjust the interests of interested parties in business on the transfer of business from an organizational law perspective. Considering the overall content, it suggests that in the case of China, the enactment of general rules for commercial law is a very urgent task, while in the case of Korea, it is necessary to work on legislation to codify the contents of major precedents that have been accumulated over a long period of time by adding them as provisions.