1, such as the new company and the original debtor company is the same person in charge, the original debtor company can be sued to achieve the right to subpoena the person in charge of the new company, through the court inquiry to find out whether the original debtor company's assets have been transferred to the name of the new company.
2. If the creditor has enough evidence to prove that the new company is just a rebranded company of the original debtor company, the creditor may be able to show the evidence to the person in charge of the company through the lawyer to force the original debtor to actively repay the debt. If the debtor does not actively cooperate, you can resort to the law, it should be noted that the evidence must be written documents and evidence.
3. If the person in charge of the original debtor company or the shareholders have issued a written guarantee of repayment or the new company has issued a written promise of repayment, then you can rely on this to recover the debt from the person in charge of the debtor company or the shareholders or the new company.
Two, how to break the debt collection tricks
Debt, on the legal level, refers to the specific parties can request a certain amount of payment of civil legal relations. At the non-legal level, the general understanding of the debt as a party due to some cause of the relationship between the other party owes a certain amount of money or property.
(a) the principle of debt evasion deduced from the perspective of the characteristics of debt
debt as a civil law system, has its own particularities. And these special characteristics of the debt itself, will likely become a powerful weapon for debt evasion.
1, the principle of the relativity of claims.
Claims as a kind of relative right, its own existence of certain limitations. When ordinary claims and other rights conflict, ordinary claims are often placed in a secondary position. The main ones are:
(1) the principle of priority in rem. The debtor in order to evade the debt, the false establishment of another right in rem against the claim, resulting in the ultimate claim can not be realized.
(2) the principle of priority of special claims. The debtor in order to escape the debt, the false establishment of special claims against the ordinary claims, so that the ordinary claims can not be realized.
2, the principle of compatibility and equality of claims. Compatibility refers to the same subject matter on the existence of several creditors at the same time; Equality is the index of creditors for the same debtor has several ordinary claims, the effectiveness of its equal, not because of the establishment of its superiority and inferiority of the effectiveness of the successive. As a result of a number of claims are compatible and equal, however, the debtor to pay the debt is natural that there will be a sequence, and then derived from the "principle of natural order of a number of ordinary claims". When the same debtor face more than one creditor, although there is no legal order between the claims, but objectively there is a natural order of priority. Individual debtor may be in accordance with the first fulfillment of the first, the first due first principle of debt evasion. The legal debtor may enter into bankruptcy proceedings, in the bankruptcy proceedings, the implementation of debt evasion.
(ii) from the subject of debt derived from the principle of debt evasion:
3, the subject of the principle of specificity.
An important characteristic of debt is its subject has specificity, the subject of the creditor is specific, the subject of the debt is also specific. In general, the creditor to realize the debt, can only claim rights to the debtor, but not to the debtor other than the claim. That is to say, if the debtor wants to evade the debt, as long as it can do the "golden shell", will be able to evade the debt. Mainly manifested in the use of shareholders and the company, the company and employees, husband and wife, agent and agent and other subjects of the special relationship between the debt.
4, the principle of legal personality.
Enterprises and institutions to obtain legal personality, it has the corresponding independent civil rights and civil capacity, independently bear the corresponding legal liability, and the property of the legal person is not enough to settle debts, in general, the legal person's contributors or promoters are not liable. It is because of this principle, can be used by the debtor to escape. Common means for bankruptcy to escape debt.
5, the main conversion principle.
To have enough solvency a subject in the name of the debt, but after a variety of planning and operation, the debt actually bear the subject into another b subject without solvency. The main means are: the use of enterprises and institutions restructuring, company separation and merger, company acquisition, contract transfer and so on.
6, the subject of the principle of extinction.
Because the subject of the debt is specific, only to a specific debtor subject can claim claims. Therefore, another principle can be derived, that is, if the creditor can not find a specific debtor or a specific debtor has been extinguished, then, as a creditor to realize the claim, it will be very difficult. Common means of debt evasion derived from this principle are: "disappearance" debt evasion, "suicide" debt evasion, "wills, bequests" debt evasion, "inheritance "debt evasion," "revocation of business license" debt evasion, "cancellation" debt evasion and so on.
(C) from the content of debt derived from the perspective of the principle of debt evasion:
7, the principle of ab initio nullity.
The debtor in order to avoid the debt, the design of traps so that the two sides of the civil act or contract was withdrawn or recognized as invalid, because the invalid or withdrawn from the beginning of the system does not produce the effect of the law, and then take the opportunity to escape the debt.
8, the contract defense principle.
Contractual parties to abuse the contract law or contractual defense rights or the debtor faked contract law or contractual defense, used against the creditor's claim, in order to achieve the purpose of evading the debt.
(D) from the debt fulfillment point of view deduced from the principle of debt evasion:
9, the principle of failure to perform.
Fulfillment can not be refers to the debtor objectively has no ability to fulfill. In order to implement the debt evasion, the debtor transfer of property, or gift, transfer of property at a low price, or will be its negligent exercise (or even give up) to the third party has a claim, so that the debtor is in an objective inability to pay the debt, so that the creditor can not realize the claim. Contract law has been specifically designed to prevent the occurrence of such acts of debt evasion and the establishment of the "right of withdrawal" and "subrogation" system. But to realize the "right of withdrawal" and "subrogation", there are still many problems to be solved.
10, the principle of defective performance.
The debtor intentionally does not strictly in accordance with the provisions of the law or the contract agreed quantity, quality, manner, time and place to fulfill the debt, so that the creditor's claim suffered losses, so as to achieve the purpose of its escape.
11, the principle of delayed performance.
The debtor is able to fulfill but not in accordance with the legal or agreed time to fulfill the debt, but delayed, so as to achieve the purpose of debt evasion.
12, the principle of breach of contract to destroy.
In some special circumstances, the debtor after a comprehensive balance of interests, that the benefits of breach of contract to be far greater than the corresponding liability for breach of contract, the debtor therefore chooses to refuse to fulfill the way to implement the debt, so that the creditor's original plan of the interests of the claim is empty.
(E) from the debt security point of view deduced from the principle of debt evasion:
13, the principle of security falls through.
In order to implement the debt evasion, to help the debtor to evade the debt or exempt the guarantor's guarantee responsibility, the debtor or the guarantor to design a trap, so that originally regarded as a normal security becomes invalid or revoked, so that the claim is no security, resulting in the final claim can not be realized.
14, the principle of conflict of security.
The same subject matter of the establishment of a number of security rights, the conflict between the various security rights, resulting in the creditor's security has lost its relevance.
(F) the principle of debt evasion deduced from the point of view of judicial remedies for claims:
15, the principle of procedural defects.
The debtor in order to implement the debt evasion, the use of negotiation, arbitration, litigation procedures, such as mechanical, period of time and other characteristics, to win the time to escape the debt or to avoid or forgive the debt.
16, the principle of burden of proof.
Debtors use the burden of proof related principles, so that the creditor due to the inability to prove or evidence failure, resulting in the creditor can not realize the claim.
17, the principle of judicial authority.
The use of judicial acts of certainty, binding force, authority and other principles, the debtor through the judicial officers to implement false judicial acts, and ultimately achieve the purpose of debt evasion.
18, the principle of notary public effectiveness.
Notarization is a state notary public of a legal act, a legal significance of the instrument or fact, to confirm its authenticity, legality of a proof of activity. Debtors may use "notarization" to evade debts. Even if the creditor knows that the content of the notarization is not the fact or the Department of the hidden illegal purpose or factors, because the notarization has a special evidence of effectiveness, enforceability and other characteristics, to realize the claim will be very difficult.
(VII) from the point of view of debt extinction derived from the principle of debt evasion:
19, the principle of mutual offset.
The debtor inappropriately apply the method of offsetting the implementation of debt evasion.
(viii) from other perspectives deduced from the principle of debt evasion
20, the principle of bona fide third party.
In order to protect the stability of the transaction, in many laws are set up to protect the bona fide third party system. In this kind of bona fide third party and the creditor may be a conflict of interest between the situation, the law chose to protect the bona fide third party. And it is easy to be used by the debtor to transfer assets to avoid debt.
21, the principle of registration of property rights.
The use of real estate, quasi-real estate property rights registration system of mechanical, lag and other defects, the implementation of debt evasion.
22, price assessment principle.
The debtor in order to evade the debt, often the use of property price uncertainty and the price assessment intermediaries in China's non-standardized status quo, low-value overestimation or high-value underestimation of the property price, in order to evade the debt.
23, debt-to-equity principle.
Originally, the debt and equity are two completely different rights, the debt is the creditor can request the debtor for a certain amount of payment of rights; and equity refers to the contributors (shareholders) for the company has the right to participate in the management of the right to dividends and participation. Between the two is insurmountable. In the reality of the claim can not be realized, the creditor will give up the claim, to obtain equity, which itself is a last resort, "the next best thing", in the process of debt-to-equity conversion, it is easy to produce the escape of debt.
24, the principle of public-private benefit conversion.
Debtors use the state-owned, collective enterprises and institutions of the interests of property owners and operators of the interests of the inconsistent factors, by giving the relevant management personnel "private" certain benefits to achieve the purpose of escaping the "public debt".
25, non-legal factors interfere with the principle.
In addition to the legal factors themselves implied by the principle that may be used to evade the debt, the reality still exists in a large number of non-legal factors leading to the phenomenon of debt evasion. For example: institutional loopholes, judicial corruption, poor implementation, government intervention, local protection, state-owned assets management omissions and other factors.