Study On The Cram-Down Power

In order to assure debtors can be reorganized successfully in some situations,new Bankruptcy Law empowers courts to confirm reorganization plans,ignoring the dissent of creditors' committee.For the legal system of bankruptcy reorganization of China,stipulating cram-down power is just on the threshold.The questions,the focus of this essay,must be confronted in the future are how to realize,understand,and exert cram-down power,for the sake of making its objectives come true. Specifically speaking,this essay includes four chapters:Chapter1:Basic analysis of cram-down power.Based on defining the conception of cram-down power,this chapter determines the legal nature of cram-down power,including:judicial power,equity jurisdiction, combination of entitative and procedural power.Then,analyzes the existence necessity of it,including:maximizing social benefit,resolving free rider problem.Chapter2:Exertion of cram-down power.Some principles should be applied by courts during the exertion of cram-down power,which are best interest of creditors test,fair and equitable test,unfair discrimination prohibition test and feasibility test.More,this chapter discusses how courts can examine reorganization plans and make final judgments under the guidance of these principles.Chapter 3:Abuse of cram-down power and related rights.This chapter points out that courts possibly abuse this power,because of the authority for rent-seeking,external intervention and misunderstanding of cram-down power by judges.Besides,related parties would abuse the right of filing a petition for cramming down,which may put great negative impact on the realization of legislative purpose of cram-down power.Chapter 4:Perfection of related systems of cram-down power. Contraposing the problems which may be faced in the process of the exertion of cram-down power,tables proposals from four aspects:adoption of new value exception,limiting the object scope to which cram-down power is applied,fairly exertion of cram-down power,enhancing the professional capability of bankruptcy judges.