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On The Cram-Down Of The Reorganization Plan

Posted on:2011-07-11Degree:MasterType:Thesis
Country:ChinaCandidate:L L ChenFull Text:PDF
GTID:2166360305981563Subject:Civil and Commercial Law
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Enterprise Bankruptcy Law of the People's Republic of China issued in August 27, 2006 regulated the reorganization system in a single chapter. From then on, our country accumulated much experience of company reorganization gradually. As one part of the reorganization system, the cram-down of the reorganization plan strengthened its effectiveness greatly. The cram-down of the reorganization plan means it is not passed identically by the Party Conference. As long as the reorganization plan accords with the regulations of this law, the court can approve the plan imperatively, and thus the plan carries into effect on all parties. The cram-down of the reorganization plan should strictly comply with all articles because it is not established based on complete satisfaction. Otherwise, the abuse of cram-down will ruin the whole reorganization system. This essay makes a thorough exposition of the system of the cram-down of the reorganization plan on the basis of other countries'rules and regulations of the cram-down of the reorganization plan, following the basic essence of Bankruptcy Law of China, and adopting some research methods, such as comparative analysis, deduction and conclusion. This essay also encircles the cram-down of the reorganization plan and exposes questions closely related to it in order to make some contribution to China's imperative approval of reorganization plan. This essay is composed of preface and text, and the latter is made up of four parts, accounting to 31,000 characters or so.Part1 outlines the cram-down of the reorganization plan. Firstly, the writer defines three elements of reorganization plan by comparative analysis. Secondly, the writer explains reorganization plan approval, including normal approval and imperative approval. Thirdly, the writer exposes attitudes of USA, UK, France and Germany on the cram-down of the reorganization plan. Therefore, we can make a conclusion that the cram-down of the reorganization plan does not include any inevitability in theory, so as to regulate it or not and how to regulate it is up to a country for it is only one way not the only way.Part 2 arguments the reasonability of the cram-down of the reorganization plan. Before the identical answer to reorganization is provided, many countries have taken some measures, however, it is still necessary to analyze and expose the rational meaning inside the system of cram-down of the reorganization plan. In the first place, this text exposes countries and their needs of laws which represents their will have become more and more active so as to maintain the whole situation well under the circumstance of economic reality nowadays from the aspect of public interests. In the second place, the text analyzes risks of creditor and clarifies protection to creditor's interests by the system from the aspect of creditor. In the thirdly place, the text explains how to settle"clamp question"effectively through the cram-down system from the aspect of economic efficiency.Part 3 encircles the cram-down of the reorganization plan and exposes court's jurisdiction right and its boundary. For the one hand, the text explains relations between the court's functions in reorganization and other organizations, and for the other hand this text provides suggestions for professional judges on how to deal with difficulties when this cram-down concerns law and economy. This part puts forward three methods on the basis of comparative analysis and brings ideas suitable for our own country. It defines the boundary of jurisdiction in reorganization on the same basis.Part 4 mainly explains principles obeyed by the cram-down of the reorganization plan. First of all, the text summarizes four principles of imperative approval of reorganization plan in theory by analyzing the legislation of China, USA and Japan. In the next place, the text analyzes four principles one by one. Acceptance principle of lowest limit ensures that the cram-down of the reorganization plan is built on the minimum content to avoid autarchy by court; principle of fair treatment asks us to treat parties concerned fairly to avoid treating unfairly by strategic implementation; principle of"creditor first"protects the creditor's given rights and lays just foundations for the cram-down of the reorganization plan; principle of absolute optimization make the settlement order ruled by law be obeyed. All conditions approved imperatively by reorganization plan and the close protection system guarantee the interests of parties with different opinions well.
Keywords/Search Tags:cram-down, range of jurisdiction, acceptance principle of lowest limit, principle of fair treatment, principle of"creditor first", principle of absolute optimization
PDF Full Text Request
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