The Research On The Applying Of Equitable Subordination Doctrine

Now, with the expansion of scale and concentration of capital, the form of a single company is gradually being replaced by a group of companies, and in the group of companies, the relationships of capital between the control company and the affiliated company or between the affiliated company is close and inseparable. The control companies often take advantage of their superiority formed by controlling position and do business with their affiliated companies improperly and engaged in the transport and transfer of interest. It not only damages the interest of affiliated companies, but also makes the creditors of affiliated companies get little or no damages. Wide attention is given to how to discharge the debt to the controller.March 2015, the key of Shagang Company v. Kaitian Company which is one of the four typical cases the Supreme Court announced is how to discharge the debt to the controller. The judgment is based on the principle of Deep Rock, the Case law from the United States which achieves the substantive equality between the creditors of control company and affiliated company. In fact, the similar cases are numerous in our trial practice, but the rules are not yet clear, the equitable subordination doctrine be regarded as positive exploration. This article is divided into four chapters to discuss the equitable subordination doctrine.The first chapter analyzes the typical case the Supreme People’s Court announced which shows that our existing rules and the system is not enough and the introduction of the equitable subordination doctrine has practical significance in our country.The second chapter compares the application of the equitable subordination doctrine in other countries and regions. First, introduce the developments of the equitable subordination doctrine in United States, Germany, China’s Taiwan district. secondly, a comparison between the automatic subordination doctrine, equitable subordination doctrine and alternative capital principles. Finally, introduce its developments in Chinese mainland.The third chapter analyzes the necessity of introducing of the equitable subordination doctrine and discusses the relationship between the equitable subordination doctrine and the disregard of corporate personality.The fourth chapter describes the applicable requirements of the equitable subordination doctrine and the construction of the legislative mode.