The Application And Restriction Of Trust In The Procedure Of Reorganization

At present our country is faced with such problems as rigid reorganization strategies,low debt repayment rate of creditor’s rights,insufficient execution of reorganization plan.In order to solve these problems,this paper proposes to utilize the trust property-independence and function of bankruptcy isolation in a trust in the procedure of corporate reorganization.According to our present Bankruptcy Law and Trust law,it is unclear whether it is permitted for a reorganized company to use trust in its reorganization plan,so that this paper focus on the demonstration of the legality and feasibility of the application of the trust in the procedure.To promote the practical application of trust in the reorganization cases,the writer has constructed the pattern of a trust plan and the procedure and substantive content of the rights and obligations of the parties to the trust.Moreover,this paper has further argued the restrictions of trust in the reorganization plan and proposed some suggestion for law complement.The first chapter is a brief introduction to the concept and application of trust in the procedure of corporate reorganization.And this chapter has supported its view by reference to precedent cases from America and the proof of the benefits of a trust,as well as the reasonable restrictions.This chapter has firstly demonstrated the legality of trust in the reorganization procedure by the analyse and interpretation of our present laws.Secondly,this chapter has demonstrated the feasibility and advantages of the trust by comparing it with other traditional reorganization strategies.Thirdly,this chapter has been end up with the discussion of the trust’s restriction.The second chapter of the main body is to construct a mode when using the trust in the reorganization procedure.The purpose of this chapter is to stipulate the procedure and substantive content for the establishment of a trust in the reorganization plan.At the same time,through the design of the basic mode of the trust,this chapter has specifically clarified the rights and obligations for the bailor,trustee and beneficiaries,which should be examined by the court.Due to the insufficient rules of our present laws,the writer has also put forward legislative proposal for the application of trust in the reorganization procedure,such as enlargement of the scope of executor for the execution of a reorganization plan,add the beneficiary general assembly system and categorical beneficial rights of trust in the trust law.The third chapter of the main body is to analyze and study American and Japanese experience and institution from the comparative perspective,which includes the analysis on the application of trust in American asbestos companies’ reorganization cases happened in 1980 s as well as Japanese related theories.Because there is not any case or regulations in China that is directly related to the topic of this paper,it is necessary to learn the experience and precedents from the countries that have already used trust in the procedure of corporate reorganization or carried out related studies about it.