我国商法设立营业转让规则的必要

当前商事活动中已经出现了越来越多的营业转让实务样态,国外已有很多营业转让的立法例,而我国目前关于营业转让的规定比较零散、杂乱、不成体系。营业转让所转让的是营业整体,而不着眼于具体的营业财产。由于营业转让的特殊性,民法不能解决营业转让中的全部问题。因此,应在商法上设立营业转让规则,在我国当前讨论制定的《商法通则》中规定营业转让是比较好的方案。

Research on the Necessity of Establishing the Rules of Business Transfer in China's Commercial Law

More and more practical instances of business transfer appear in commercial activities, there are many legislation instances about business transfer in foreign countries,but the rules of business transfer are Absent in China′s law. At present, the China′s rules of business transfer are dispersive, unorderly and immethodical. What is transferred in business transfer is to take business as a whole, not the concrete business property. Because of the particularity of business transfer, not all the problems can be dissolved through civil law, thus, the rules of business transfer shall be established in commercial law. It is a better solution that the rules of business transfer are formulated in General Principles of The Commercial Law which is being discussed and preparing to be enacted at present.