Research On The Merger Rules Of The Bankruptcy Of Affiliated Companies

In 2006,"Enterprise Bankruptcy Law of the People's Republic of China"(hereinafter referred to as " Bankruptcy Law ")promulgated,established the market-oriented enterprises to withdraw and reorganization mechanism.After ten years of development,bankruptcy judicial practice provides a strong support for purifying the benign order of the market economy,and the relevant theoretical research has made considerable progress.But for the debt crisis that common existing in the affiliated enterprise,especially association groups use the rights of shareholders and limited liability in some way cause the relationship between the affiliated enterprises is obviously inappropriate.It is a common problem on how to adjust the bankruptcy procedure in order to get to the root.On the one hand,theoretically continue to deepen discussion,but has yet to implement any legislative norms,the Supreme People's Court started the drafting of the merger bankruptcy judicial interpretation,but has too many rounds of modifications and comments,is still difficult to introduce.On the other hand,due to the practical needs,judicial practice is trying to have a new breakthrough on the way of merger and bankruptcy.In recent years,there are 43 judicial practices related to the bankruptcy of affiliated enterprises.The particularity and complexity of the affiliated enterprises determine the backwardness and non adaptability of the traditional way of handling the bankruptcy mode of a single enterprise.Therefore,the study of the application of the merger and bankruptcy rules in China is of great practical significance,it also an urgent task for China's current bankruptcy law to regulate the market exit mechanism.In this paper,the substantive consolidation rule of the bankruptcy of affiliated enterprises are proposed from two aspects of theory and practice,in order to form the internal logic and external requirements of the application of substantive consolidation rule.The first chapter on the reality of the plight of affiliated enterprise bankruptcy face to be elaborated,the first section describes the concept and characteristics of the affiliated enterprise,the second section lists several situations of inappropriate related and legal consequences,and further through the judicial practice cases illustrates the current dilemma of judicial trial that lack of clear legal rules.The second chapter embarks from the substantive consolidation rule in the Enterprises Bankruptcy Law of United States,try to resolve the legal basis and the applicable rules of substantive consolidations rule,applied to inappropriate related enterprises.The first section introduces the basic connotation of substantive consolidation rule of the law of United States,and further explains the rules have the characteristics of American equity,in order to put forward the matters that should be paid attention to introduce the rules in our country,then put forward the problem of how to seek the theory support system in China's civil law framework.The second section through the deconstruction theory of company law on the independent legal personality in civil law system,in order to demonstrate the substantive consolidation rule fits with the theory of company law.The third chapter is based on the theoretical analysis of the second chapter,combined with judicial practice,to briefly introduce the specific practical issues of the substantive consolidation rule.The first section analyzes the function of various adjustment mechanisms in the bankruptcy of improper related enterprises,then descripts the unique value of the substantive consolidation rule as the final adjustment mechanism.The second section expounds the substantive consolidation rule can be applied to what type of procedures in bankruptcy practice.Based on the theoretical analysis of the second chapter,the third section combined with the domestic and overseas judicial practice demonstrates the opinion that substantive consolidation rule as judicial adjudication can only be made by the judicial authority.The fourth section briefly describes the results of the substantive consolidation rule in judicial practice in the specific application,including the jurisdiction of court,the merger of the assets and liabilities,determining administrators,the unification of the means of the creditors,offset the credit and debt,treatment of common debt,etc..