Research Associated With The Enterprise Bankruptcy Law

As one widely existent coalition of enterprises, affiliated companies have great impact on the traditional jurisprudence and practice, besides, their insolvency is also difficult to tackle, however, China's present legal system has not attached adequate importance to it and few scholars have studied this important issue. This thesis is to focuses on the insolvency of affiliated companies and the legal system concerning their insolvency to provide reference for the perfection of related legal regulations and laws. This thesis is composed of three parts as follows:Part Ⅰ focuses on the affiliated companies and their insolvency. The author gives out the definition of affiliated companies and advocates that their feature is that the affiliated companies themselves are non-legal entities and their member companies are legal entities. So the legal issue concerning their insolvency has occurred, that is, how to realize fairness in the course of their insolvency in which the controlling corporation has the controlling right and is under the protection of limited liability.Part Ⅱ focuses on the comparison of the legal system concerning the insolvency of affiliated companies. The author mainly introduces the legal system concerning the insolvency of affiliated companies of foreign countries and Taiwan of PRC, including the principle of piercing corporate veil, the principle ofdeep-rock doctrine, substantive consolidation doctrine, fiduciary duties of the controlling shareholders, and related systems of Germany and Taiwan of PRC. And then the author focuses on the comparison of the above systems and their enlightenment on the construction of China's legal system concerning the solvency of affiliated companies.Part Ⅲ focuses on the affiliated companies and theconstruction and the perfection of China's legal system concerning the solvency of affiliated companies.Firstly the author introduces the present status of affiliated companies in China; secondly, the author gives out the criterions concerning the cognition of affiliated companies, including the quantity and quality criterion; thirdly, the author focuses on the construction of China's legal system concerning the insolvency of affiliated companies, which is divided into four situations as follows:1) The subsidiary corporation is insolvent while the parent corporation is not. The author argues that, referring to the legislation of Taiwan of PRC, the parent corporation and other subsidiary corporations should shoulder affiliated liabilities with the insolvent subsidiary corporations, the exterior creditors and the minority shareholders of which should have independent right to claim for damages with the restriction of the minority shareholders' qualification and the right of set-off by the parent corporation and other beneficial subsidiary corporations. As for the order of discharging, the parent co corporation and other beneficial subsidiary corporations should be next to the common creditors principally. It should be stipulated that the parent corporation bear fiduciary duties and damage liability in breach of this duty to its subsidiary corporations. In the course of litigation, the onus probandi should be conversed by referring to German modus operandi.2) The parent corporation is insolvent while the subsidiary is not. The creditors of the parent corporation can receive damages from the estates of its existent subsidiary corporations, however, if the existent subsidiary corporations are not fully owned by the parent corporation, the creditors' right can be tackled according to the regulations of the first situation.3) Both the parent corporation and its subsidiary corporations are insolvent. By introducing the substantive consolidation doctrine, firstly, the assets and debts of the parent corporation and its subsidiary corporations are to be calculated together, secondly, the creditors' right and security relationship between them should be subtracted from the amount in the fi...