A: The word "merger" is a concept in China's enterprise law, which mainly refers to "merger between enterprises owned by the whole people". The concept of "merger" does not exist in the Company Law, so "company merger" has no legal basis. However, in practice and some theoretical discussions, the word "company merger" has been recognized, so the difference between enterprises and companies is not considered for the time being. The legislation points out the way to implement the merger, that is, one enterprise buys the property right of another enterprise for compensation, and the consequence is that the merged enterprise loses its legal personality or changes its legal entity. The change of legal entity here means the change of control right, the change of investment subject, or the purchase of assets by other enterprises. The author thinks that this provision has many defects in legislation. Let's look at it from a practical point of view. First of all, "compensation" embodies that the enterprise itself is bought and sold as a commodity. Specifically, the sale of enterprises by government departments is not an act between enterprises at all; Secondly, the legal consequence of merger in practice is the loss of legal person qualification of the merged enterprise; Furthermore, it is worth mentioning that from the meaning and classification of the above-mentioned merger, we can know that the merger also includes enterprise acquisition (the fourth form of enterprise merger stipulated in the Interim Measures for Enterprise Merger is holding type), but from the point of view of this provision itself, the transaction subject is not the merged enterprise and the merged enterprise, but the shareholders of the merged enterprise and the merged enterprise, which is inconsistent with the meaning of enterprise merger. The enterprise owned by the whole people is not a joint-stock enterprise, and its investment subject is single.
Therefore, some of the above provisions on "merger" are obviously not operable. They are introduced to meet the needs of enterprise property right transaction, system transition and industrial structure adjustment, and do not have complete and rigorous legislative significance. With the gradual establishment and improvement of China's legal system, it should be the product of a historical stage and gradually withdraw from the historical stage. Accordingly, the provisions on the meaning of company merger in the company law have more legislative significance. Therefore, since the Company Law has stipulated the classification of the meaning of corporate merger, in order to pursue the rigor of the legal concept system, the author's opinion is that the meaning of corporate merger should be absorption and merger in the Company Law, and the merged enterprise loses its legal person status. At the same time, it should be made clear in the company law that "company merger is also called company merger".
This idea of the author can also be proved by the English meaning of the word "merger". Merger: China scholars usually translate it into merger. Encyclopedia Britannica defines the word "merger" as: refers to the merger of two or more independent enterprises and companies to form an enterprise, usually a dominant company absorbs another company or companies. In addition, merger also refers to absorption merger.