The Application Of Substantive Consolidation Rules In The Bankruptcy Of Affiliated Enterprises

Affiliated enterprises have the unique advantages of reducing transaction costs,reducing market risks,optimizing resource allocation and improving overall competitiveness,gradually replacing single enterprises as the main market players.The emergence and development of affiliated enterprises have sufficient economic rationality,but because the traditional company law and other commercial laws in our country are based on the single enterprise to build the basic institutional framework,we have not paid enough attention to the new form of affiliated enterprises.The absence of legal regulation leaves room for affiliated enterprises to transfer fraudulent property by using internal affiliated relations,self-profit transaction and other acts against the interests of external creditors,and the legitimacy of the operation mechanism of affiliated enterprises faces torture.The bankruptcy of non-standard affiliated enterprises is more complicated than that of single enterprises.We need to deal with the judicial challenges brought by the bankruptcy of affiliated enterprises and clarify the relationship between the legal form of the independent legal status of the members of affiliated enterprises and the economic essence of the highly confused interests.Although substantive consolidation bankruptcy has not been explicitly incorporated into the statute law of our country,there are already judicial practices applicable to substantive consolidation in dealing with the bankruptcy of affiliated enterprises,and good legal and social effects have been achieved.This article focuses on the application of the substantive consolidation system in the bankruptcy liquidation of affiliated enterprises,which is discussed in four parts:In the first part,the basic theory of the substantive consolidation,through studying and summarizing the views of experts and scholars in the bankruptcy law field at home and abroad,the author tries to grasp the connotation of the substantive consolidation rules from the angle of system value,application conditions and results and concrete methods.Secondly,the extension of the substantive consolidation rules is further clarified by comparing with other relevant systems,such as the denial of legal capacity,equity and right of bankruptcy withdrawal.Lastly,the establishment of the system is right,the theory of substantive fairness and the basis of legal economics provide theoretical support for it.In the second part,the judicial status of the substantive consolidation in our country is analyzed.The judicial status of the substantive consolidation in China is investigated from two aspects of entity and procedure.The substantive aspect mainly revolves around the judicial decision and the legal basis and so on angle launches.The procedural aspects mainly focus on the types of substantive consolidation bankruptcy proceedings,the mode of commencement of substantive consolidation bankruptcy proceedings,the subject of application for substantive consolidation bankruptcy,the protection of the right of knowledge and objection of creditors in the substantive consolidation bankruptcy proceedings.In the third part,the problems of the substantive consolidation in our country are analyzed.The problems of substantive consolidation in bankruptcy procedure in China are investigated from two aspects of entity and procedure.In terms of entity,there are some problems,such as single adjudication standard and inconsistent legal basis.In the aspect of procedure,there are problems such as inconsistent initiation mode,narrow scope of the applicant,the incomplete procedural guarantee of the right of objection.In the fourth part,the improvement suggestions of substantive consolidation rules in the bankruptcy of related enterprises in China are discussed from three aspects: macroscopic view,medium view and microcosmic view.In macroscopic view,the basic principle of substantive consolidation rules is established,namely,the principle of careful application,substantive fairness and economic efficiency.The medium view defines the application standard of substantive consolidation rule.The relationship between high mixing of legal personality and the difficulty of separating assets is straightened out.It also discusses the rationality of incorporating the income of creditors into the applicable condition of substantive consolidation.In microcosmic view,the institutional structure of substantive consolidation rules is clearly defined.In terms of entity,the issue of application subject,principle of application,applicable condition,exclusion of applicable situation,etc.In the aspect of the proceedings,the commencement mode of the substantive consolidation bankruptcy procedure,the determination of the scope of the applicant,the burden of proof,the guarantee of the right of knowledge and objection of the creditors.