On The Legal System Of Creditor's Interest Protection In The Bankruptcy And Reorganization In Russia

Corporate bankruptcy liquidation is manifestation of the law of "survival of the fittest" under market economy with the reverse institution of bankruptcy reorganization which focus on the enterprise reborn and prolong the market lift cycle of stranded enterprises. Bankruptcy reorganization demanded by the community-based rationale is the fruits of market economy developed to the phase of large-scale socialized production which is characteristic of maintaining social security as well as keeping steady employment and adopted by a lot of countries since its origination. Dating back to the late of 1990's, Russia had been strapped in severe financial crisis with a number of fiscal corporations driven to the rim of bankruptcy, which did triger Russia to bring in the institution of bankruptcy reorganization for the very reason of rescueing fiscal corporations and supporting social stability. However in the practice of reorganization the interests of creditors have been jeopardized seriously with the passive exercise of creditor's rights and the void mechanism of creditor's protection.This dissertation seeks for the rootstock for the passivity of the creditor's rights exercise in Russian bankruptcy reorganization via two clues. The first is to look for the flaws of institutional design through comprehensive scrutiny of the mechanism of creditor's protection in Russian bankruptcy reorganization; The second is to search for the peculiarity of the mechanism of creditor's protection for countries in transition by analysing the impact of the institutional environment of transplantation for the implementation of institution. The point of view is in the design of institution of creditor's protection in bankruptcy reorganization countries in transition couldn't copy the mode of developed countries simply but should intensify the protection of creditor's interests and forge the kind of institution of creditor's protection in which incentive and monitoring are equivalent. The experience of Russia extends vital inspiration to China for both of them belong to countries in transition and share relevance in the construction of the institution of creditor's interests protection in bankruptcy reorganization. The paper is divided into five chapters for more specific analysis.The first chapter is to elaborate on the weakening status of creditors under the current Russian legal framework. The so-called "?????????????" of Russian bankruptcy reorganization was transplanted from western countries and set in the bankruptcy law system with the structuring of relevant institution of creditor's protection. In retrospect, from the protection of creditors in debt enforcement to that in bankruptcy reorganization, what is carried out in Russia is the institution of creditor's protection within the multi-value purposes. This kind of public interests-prior institution of creditor's protection was challenged by the crisis of debt payment , which means that the transfer of creditor's interests to public interests has been transformed as the transfer to mighty groups' interests with the grievous damage of creditor's goods and the formation of creditor's weakening status.The second chapter is to illustrate the institutional design of creditor's protection in Russian bankruptcy reorganization which has two levels reorganization outside of the court and reorganization inside of the court. In the reorganization outside of the court the protections for creditors are primarily demonstrated as the remedy measures provided by government. In the reorganization inside of the court there are several typical institutions for the protection of creditor's interests such as investigation system and security system in financial recovery and arbitration management system. Besides that three layers of monitoring system being important for the protection of creditor's interests have been found in Russia which is oversight from creditor's meeting and oversight from arbitration manager's self-discipline as well as oversight from Russian federal monitoring bureau of reorganization and bankruptcy.The third chapter is to pierce into the passivity for creditor's rights exercise in Russian bankruptcy reorganization which gives creditors a lot of substantive rights but confined in the exercise of practice. On the basis of conclusion for Russian classic bankruptcy cases, the issue of " passivity for creditor's rights exercise"was raised with the pursuit of legal genesis behind it and further analysis of the impact of creditor's rights exercise for the implementation performance of Russian reorganization. The fourth chapter is to reveal the path for the legislative objective ofcreditor's protection in Russia to realize. Russian bankruptcy reorganization make use of legislative mode of equity under which the creditor's protection will be achieved by the maximization of the reorganized corporation's interests which conflict with the severe corporate governance structure and judiciary environment of Russia. Creditor's interests in bankruptcy reorganization for countries in transition need intensified protection eagerly which could be actualized by the consummation of creditor's incentive mechanism and monitoring mechanism.The last chapter is to conclude the illumination for China given by the institutional construction of creditor's protection in Russian bankruptcy reorganization for the very reason that China's bankruptcy reorganization was also the product of legal transplantation and stipulated under the bankruptcy law framework with the similarity in the legal vicissitude of creditor's protection and passivity of creditor's right exercise shared by these two countries. This sort of enlightenment could be perceived in such following perspectives as that China need to perfect the protection for creditor's interests in the reorganization outside of the court ,that China need to set up the substantial inspection procedure for bankruptcy reorganization,that China need to regulate the mandatory approval system for the bankruptcy reorganization plan, that China need to found the creditor's incentive mechanism for the corporate governance of the bankruptcy reorganization.