The Study On The Law System Of The Reorganization

The reorganization system and its procedure represents the development of the modern international bankruptcy law, at the same time it is the key point on which all various nations are revising and making. In recent years, some representative cases of the bankruptcy come forth in the world, the bankruptcy of the An ran Company, for instance, and also the bankruptcy of Unite Airways in the US, which apply the Reorganization System exactly and properly. It is the common features and the prevail trend to recognize and consolidate the provision of the Reorganization System, and it is also the necessary result and rational sublimation, which is resulted from the development of the Bankruptcy Law. On June 15th, 2004, the finance and economics committee of the National People Congress referred the Bankruptcy Law of The People's Republic of China (sketch edition) (called as the sketch of the Bankruptcy Law for short as follows) for the consideration, in which concludes the Reorganization System, and adds one unit specially to make the formal regulations of the Reorganization System and its process. In the rest of the text, based on the experience of the foreign reorganization case, and combine the practice of our nation's law of reorganization at this stage, the author will present the opinion on the further improvement of the sketch of the Bankruptcy Law, with the hope that it can be of more feasibility in our nation, and to reach the expected target of making this law. Five sections will be concluded in this thesis: In the first section, the basic theory on the Reorganization System will be presented. The author discusses the definition of the Reorganization System in terms of the purpose of the Reorganization System, pointing out that the Reorganization System should firmly blend the Clearing System with the Salvaging System. Moreover, the author will also probe into the features of the Reorganization System combined with the differences among the Reorganization, Liquidating, and Compromising Systems. While expressing the evolution of the Reorganization System, the author emphasizes on the economical background of the birth of the Reorganization System, and enumerates the status quo of those key countries'Reorganization Laws, at the same time, on the basis of the comparison of the three Reorganization Systems, the author protests that our nation should apply the system that is made in the uniform bankruptcy law. In the last part of this section, the author also explains the three theory gists respectively, that is, On going concern value, On Common Benefits and On Social Policy. In the second section, the programming of the law entity in the Reorganization process will be presented. Firstly, the author will give the comment and explanation of such three special parties as the Reorganization Person, Reorganization custodian, and Relatives Conference based on the foreign experience of making law. As far as the proper scope of the Reorganization System is concerned, the author thinks that because of the long period of the reorganization and the complexity of the process, if applied in all kinds of the companies, the result will be over high social cost, easily abused in the practice, and damage the benefit of the creditor, therefore it is perfect for the artificial person of the corporation. While presenting the proper preconditions of the Reorganization System, the author thinks that the court can proceed the real examination while making assure whether the corporation deserves the reorganization. Having the causes of reorganization and existing the financial trouble but with the expectation of reorganization value should be the two prerequisites for the court to judge the debtor. Moreover, the author holds the opinion that the qualified debtors, creditors or investors have the right to apply the reorganization to the court. The author also talks about the reorganization creditor's rights, reorganization debts and rights of the shareholders in the last part of this section. In the section three, the plan of the reorganization is presented. The Reorganization Plan is the most important legal paper in the reorganization process. From the beginning to the ending of the reorganization process, studying out and executing of the Reorganization Plan is the core part in any terms, since it acts like the bridge to connect the past with the future. There are five parts as far as the problems related to the Reorganization Plan are concerned, which include working out the Reorganization Plan, passing the Reorganization Plan, revising the Reorganization Plan, authorizing theReorganization Plan and carrying out the Reorganization Plan, etc. From these five parts, the Reorganization Plan will be explained. In the section four, the two forms of the Reorganization Expiry, that is, the Termination of the Reorganization and the Completion of the Reorganization, will be presented. In the author's opinion, while making the law of the Reorganization System, the reasons for ending the reorganization should be given in more details in order to prevent the abusing or the delay of the Reorganization System. For those that meet the requirement of the Reorganization Expiry, the court should judge the Ending Reorganization Process and apply the bankruptcy process in time. In the section five, the author show the necessity of the making the Reorganization System in our country, pointing out the multi-benefits given by the Reorganization System, and the making and the improvement of the Reorganization System is an urgent requirement of the development of our market economy. Furthermore, the author points out that there still exists the danger of being abused, so the application of the Reorganization System should be cautious. At the same time, we should prevent the Reorganization System to be used as the Saving Method of the national corporation. The author also holds the thoughts that the court should be cautious with their right to the reorganization of the corporation and the confirming of the Reorganization Plan, only insisting in the social benefits should not be the good excuse for hurt the private ones. In the last part of the paper, the author points out that our nation had little substantial experience before the new bankruptcy law is added into the Reorganization System, and therefore, more attention on the native situation should be paid to the later revising process of the sketch of the new bankruptcy law, thus the operation of the Reorganization System will be more feasible in our country.