Research On The Protection Of Dissenting Creditors In Reorganization Process

With the development of economics, various economic organizations have become wired, thus, the negative impact of enterprises'bankruptcy has snowballed. This requires the Bankruptcy Law to break the traditional benefit pattern of "creditors--debtors", and to pay more attention to social benefit. Reorganization system has emerged, as the times required.Reorganization system is an active system for saving enterprises in difficulties, whose aim is to help enterprises to get out of a morass and recover their production and management by adopting kinds of effective measures. It has become a hotspot of reforms of Bankruptcy Law all over the world, because it can effectively avoid or reduce the negative impact of enterprises'bankruptcy.However, reorganization system involves too many parties'benefits, and conflicts are unavoidable. Due to the concrete benefits are different, even the creditors, who share the same fundamental benefit would have different opinions. A few creditors who hold opposite opinions are called "dissenting creditors". Their voice would probably be drowned because of majority decision rule of reorganization system. In order to protect dissenting creditors' benefit, and to guarantee justice of the system, lots of countries have taken protective and remedial measures, among which, America has the most meticulous and comprehensive measures. From "the best interest doctrine", "the absolute priority doctrine" and "new value exception" for all dissenting creditors to "adequate protection" and "lifting the stay" for secured dissenting creditors, it has spun a web to protect dissenting creditors'benefits.Our current reorganization system was drawn up on the lines of the American reorganization system. Although we have borrowed some ideas from America for dissenting creditors'protection, relevant provisions are scattered in some articles and it hasn't formed a complete protection web. Besides, our provisions have lots of loopholes and lack practical function, so that it can not offer dissenting creditors an effective protection.Protection of dissenting creditors is chosen as research topic in this thesis to discuss the ways for further development of our reorganization system. This thesis is divided into four parts. Part one elaborates the evolutionary of Bankruptcy, the origin and development of reorganization system and limitations and protections on creditors set by reorganization system, and points out reorganization system is an inexorable trend of social development. As this system develops, creditors'position has been weakened. We should aware that the purpose of Bankruptcy Law is to protect creditors and it would never change. Part two forms a frame of dissenting creditors by elaborating the conception, characteristics and classification of dissenting creditors, and analyzes the motions of dissenting creditors. Part three discusses the necessity and possibility of dissenting creditors'protection and draws a line of dissenting creditors'protection on the basis of America's protection measures. Part four discusses the flaws of our current legislation for protecting dissenting creditors, and proposes some suggestions for modification.