The Substantive Consolidation Principle In The Judicial Application Of Merger Restructuring

Merger restructuring is a special way of restructuring process, and it is a complement to the restructuring process for a single enterprise, which regards the substantial combined principle as theoretical guiding principle. Although our country legislation hasn't established the substantive consolidation principle in present phase, but some courts which dealing with individual cases have attempted to apply the substantial combined principle to merger restructuring of associated enterprises. These cases not only pay off all the creditors fairly, but also improve the efficiency of the restructuring greatly. However, in the absence of legislation, applying the substantial combined principle to merger restructuring of associated enterprises has caused controversies in the theory. So, verify the meaning of merger restructuring and essence of substantial combined principle, which is not only conducive to the substantial combined principle of judicial application in merger restructuring process, but also significant in making system of bankruptcy law perfect and realizing justice and guide judicial trial effectively. Graduation thesis analyzes the substantial combined principle which successfully based on the largest affiliated merger restructuring in domestic judicial verdict, besides the introduction, the thesis includes three parts as follow:In the first section, introduction the case and two controversial agendas:Should the Zong Heng group of six affiliated enterprises fit for the merger restructuring, and under any certain circumstance to fulfill the principle?In the second section, analyzing two controversial agendas of legal theory on the case: First, analyzing the case basically for whether it should be merged. Pointing out the problems made by six companies in separate restructuring process, and shows how merger restructuring process can not only guarantee fair value but also manifests the efficiency within the first principle. After that, comparing the substantive consolidation principle and corporate personality denial system, it is concluded that the rationality of this case apply the principle of substantive consolidation principle. Therefore, based on the theory level combined with cases that affiliated enterprises were merged in restructuring process successfully, graduation thesis explores the suitable conditions of substantive consolidation principle. Finally, according to the research to conclude of merging conditions about the substantive consolidation principle and combine with the case fact, then summarizes the condition of Zong Heng group apply the substantive consolidation principle, and completes the controversial agendas among the second controversy. In the end, the section summary.The third section:submitting the judicial suggestions throughout three aspects which strictly define the substantive consolidation principle as follow:establish prudence concept, prevent excessive efficiency concept way to far, fully respect the creditor's right of dissent.