Research On Consolidation Doctrine Of The Affiliated Enterprise In Bankruptcy

In modern enterprise system,problems belong with the appearance and growth of affiliated enterprise.In the duration of the affiliated enterprise,there are problems as highly confusion of managing group,personnel and property,abuse of correlation to transfer the debt.All those may damage the legal person personality of the subordinate enterprise.In the case of the affiliated enterprise bankruptcy, the possibility highlight and gets worse.The rights and interests of subordinate enterprises, creditors and even control of enterprise maybe damaged.The current company law, bankruptcy law is facing problems.The author hold that,when the affiliated enterprise bankruptcy, it is difficult or even impossible to strict quantitative and equilibrium the interests of all kinds of stakeholders.In order to protect and balance the interests of creditors and other stakeholders, the things we can do is to optimize the design of the system theory and program.This dissertation is divided into 4 parts:In the first part,put forward the challenges from the bankruptcy of affiliated enterprise to company law and bankruptcy law.When the affiliated enterprise bankruptcy,there are many conflicts of interest between affiliated enterprise,creditors and the investor.The current bankruptcy law of bankruptcy revocation system,bankruptcy ineffective system and the current company law of legal personality denial system, shareholder limited liability system, principle of creditor equality,damage compensation system of incidence relation are in trouble in different extent.In the second part,introduce and analysis the theory support and system value of complicated bankruptcy bankruptcy of affiliated enterprise.Theory and practice of affiliated enterprise bankruptcy have experienced from business entity theory to the theory of enterprise law.Corporate personality denial system, the principle of the subordinate claims, the principle of substantial merger are all based on business entity theory and the theory of enterprise law. Fair repay creditors and substantial justice are the primary pursuit of bankruptcy system, the efficiency principle is gradually valued because it embodies the essence of justice.In the third part,explore the suitable conditions of complicated bankruptcy of affiliated enterprise.First of all, complicated bankruptcy subject to applicable affiliated enterprise under certain circumstances.Second, the reference factors of affiliated enterprise include highly confusing of legal personality, difficulty of separating assets, balancing the interests of creditors and the declaration of the third party intermediary.The last,the part of rule out applicable situation mainly talk about cautious principles and two kinds of situation.In the fourth part,combining theory and practice, this paper discusses program design and operational problems of somplicated bankruptcy of affiliated enterprise.In particular extent,complicated bankruptcy of affiliated enterprise need to consider the problem of starting mode,entities of application,determining of the court of jurisdiction,appointing of manager,work handover and so on.There are kinds of complicated bankruptcy of affiliated enterprise start up modes,which includes first merger and then bankruptcy.The applicants of complicated bankruptcy of affiliated enterprise include creditors and debtors. In the determination the court of jurisdiction, we may take "profit center" combined with the designation of jurisdiction. In the case that the creditors filed for complicated bankruptcy,the distribution of burden of proof is a controversial question.The people’s court shall determine the accountant in bankruptcy according to actual situation of the affiliated enterprise. The cooperation between the courts of jurisdiction and the effective transfer of work are propitious to the bankruptcy proceedings.