Study On Judgment Criteria Of Substantive Consolidation And Bankruptcy Reorganization Of Affiliated Enterprises

The Substantive consolidation and bankruptcy reorganization of affiliated enterprises is generated under the circumstance that the current relevant legal system is unable to regulate its prominent bankruptcy problems and achieve the success of enterprise reorganization.Due to the lack of a clear legal provisions of the substantive consolidation and bankruptcy,the judicial exploration of the reorganization of the Substantive consolidation and bankruptcy has also led to the academic question.Therefore,it is of great significance to establish and improve the judgment criteria for the substantive consolidation bankruptcy reorganization for correctly grasping the application of the substantive consolidation bankruptcy reorganization and giving play to the value and function of the substantial consolidation bankruptcy.Through the empirical analysis of the substantial consolidation judgment criteria adopted in China's judicial practice and the interpretation of the judgment criteria stipulated by the bankruptcy trial conference,there are two problems in the judgment criteria of the substantial consolidation reorganization of China's affiliated enterprises: too single and relatively vague.By contrast,the judgment of substantial consolidation in several countries and regions of foreign laws starts from the criterias of corporate personality mutual self-identity and severe confusion,and moves towards the comprehensive consideration of the criterias of creditor's trust interest and creditor's income in the substantial consolidation.Substantial consolidation judgment criterias have a comprehensive,diversified and clear development trend.Based on the value of substantial consolidation and the actual situation of our country,the judgment criteria of consolidated bankruptcy reorganization should be considered from two perspectives: the result of the bankrupt's behavior and the balance of the interests of the creditors.Accordingly,the improvement of substantial consolidation judgment criteria in our country should start from the establishment of "primary + auxiliary" merger judgment criteria system,which specifically takes the high degree of confusion of legal personality and the debtor's fraud as the primary judgment criteria,and the creditor's income and the benefit of reorganization as the auxiliary judgment criteria.At the same time,the content of the primary criteria should be further specified and the purpose of the auxiliary criteria should be clarified to enhance the operability in practice.