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公司进行重大的营业转让时,理应履行股东大会的特别决议程序,但我国公司法却对此未作专门规定。虽然对于上市公司出售重大资产的程序规定可适用于营业转让,但该规定存在着许多缺陷,且适用范围太窄。因此,我国公司法应引入营业转让的概念,并对公司进行重大营业转让课以履行股东大会决议程序的义务。但不澄清何为营业、何为重大营业转让等具体适用方面的问题,既会影响到股东的保护,又会影响到交易的安全,还会妨碍公司的经营效率。在这些问题上,日本法成熟的立法规定、丰富的判例及学说理论可为我国的立法与司法提供有益的借鉴与启示。
When a company makes a significant business transfer, it is quite necessary to fulfill the special resolution procedure of the general meeting of shareholders. However, the Company Law of the People’s Republic of China has not made any special provisions on this. Although the procedures for the disposal of major assets by listed companies may be applicable to business assignments, there are many flaws and the scope of application is too narrow. Therefore, our company law should introduce the concept of business transfer, and carry out a major business transfer class for the company to fulfill the obligations of the general meeting resolution process. However, it does not clarify what is business operation or what is the specific application issue of major business assignments. This will not only affect the protection of shareholders, but also the transaction security and the operation efficiency of the company. On these issues, the mature legislative provisions of Japan law, rich case law and doctrine theory can provide useful references and enlightenment for our country’s legislation and judicature.