| Along with the implementation of modern enterprise system and the development of capital market,theamalgamation of enterprises has become an economic phenomenon of increasing importance.Ambiguity of property,personnel,and office is often observed among related enterprises,causing conflict between the independent legal status and the economical dependence.When an enterprise is running in good condition,problems caused by the said conflict are not apparent.once the affiliated enterprises lose access to capital and fail,however,the issue will be aggravated.This phenomenon offers the challenge of designing a system of related enterprises merging bankruptcy with Chinese characteristics.In the second chapter,From the perspective of improving judicial efficiency and promoting economic stability,this paper discusses the necessity of constructing multi-level processing mechanism of related enterprises merging bankruptcy.based on summarizing the experience of U.S.’s system of substantial merger,the paper puts forward the merging bankruptcy processing mechanism of multi-level related enterprise in China to perfect the merging bankruptcy system.In this regard,the thesis studies corporate governance structure,confusion and the difficulty of distinguishing corporate assets.Furthermore,the thesis proposes the necessity of treating separate bankruptcy,procedural merging bankruptcy,and substantive bankruptcy.Thus,related enterprises confronted with different type of bankruptcy can choose suitable bankruptcy processes based on their own condition.In addition,reflecting on the merger of bankruptcy should abide by the principle of fairness,good faith,prohibition of abuse of rights,and merge into bankruptcy under the constraints of these threeprinciples.Finally,through the relevant guidance documents of China’s supreme people’s court and some provincial people’s courts,the legal basis of merging bankruptcy is illustrated.The third chapter proposes two application standards of merging bankruptcy in China.First of all,this paper reviewed the process of constantly improve the development of the principle of substantive merger of U.S.,and then according to the judicial practice in China and a series of cases in the opinions of the relevant scholars,believe in our merging bankruptcy shall follow the two standards.The Procedural standard requires the ambiguity of corporate personality,and the substantive standard requires economic and judicial benefits in the merger of related enterprises.Those two standards corresponding respectively with Procedural bankruptcy and substantive bankruptcy,together with Procedural merger and substantive merger,establish a set of effective merging bankruptcy standard for multi-level related enterprises.The fourth chapter focuses on the dilemma and the corresponding solutions of China’s merging bankruptcy system.After pondering over the impact on the corporation personality denying system brought by merging bankruptcy and claimers’ objection caused by the adjustment of the claims,the thesis concludes two points of view.The first one is that substantive merger is the final denial of corporate personality,however,due to its absoluteness,related enterprises are able to recognize the severe consequences of unmerited affiliated transactions and falsified claims and debts,drawing the foot-line for the enterprises to abide by as well as better defending the corporations’ personality.The second one is the benefits of all members of claimers can be protected to the greatest extent by the means of endowing the dissenting claimers with right of dissent and compensation after the substantive merger. |
