The Research On The Protection Of Financial Claims In Business Reorganization

The Reorganization is a newly introduced system of Enterprise Bankruptcy Law of the People's Republic of China adopted in 2006.Its process and operation is stipulated in an independent chapter before Compromise and Bankruptcy Liquidation,which reflects the new bankruptcy legislative purpose of reconstructionism.Due to the over-principle and simplicity of the regulation,the application of the Reorganization has been low except for retaining the shell resource of the listed company.Until China's economy entered the new normal,the Reorganization has a very good effect on the “de-capacity” in the supply-side structural reform,and the application of the process is now booming.However,Both the typical reorganization cases issued by the courts and the reorganization of the case in which the author participated personally,the public interest is maintained as the basis for publicity and procedural legitimacy,and the protection of the largest financial debt is often retreated.While the protection of financial creditors is not optimistic,the non-performing loan ratio of China's commercial banks has been increasing year by year since 2013.By the end of 2017,it has approached 1.74%,and the non-performing loans of commercial banks have increased by 1.2 trillion yuan in five years.The realization of the rights and interests of commercial banks is the core of maintaining financial security and stability,curbing credit crisis and avoiding systemic financial risks.If the protection of financial creditors is repeatedly failed,it will inevitably exacerbate the deterioration of non-performing assets and induce financial market turmoil.Therefore,the current reorganization legislation and practice should re-examine the importanceand feasibility of financial creditors' protection.This paper starts from the value orientation of the reorganization system,combines the outstanding problems of financial creditors' realization,analyzes the reasons for the weak protection of financial creditors' rights in the reorganization process,and seeks a perfect legislative model and a reasonable remedy path.The article is divided into four parts.The first part is mainly an overview of the reorganization system and financial claim protection.Firstly,the article introduces the concept and value orientation of the reorganization system,and clarifies that the reorganization system certainly considers the overall interests of society,but the protection of creditor's rights is still fundamental.Secondly,it is an overview of the protection of financial claims.From the two aspects of concept and characteristics,it reveals that financial claims only enjoy general claim right protection.Finally,from the balance of interests of the reorganization procedure and the significance of financial security,the necessity of financial claims protection in reorganization is expounded.The second part mainly raises the problems which exist in the dilemma of financial claims protection in China's reorganization practice,and summarizes four prominent problems closely related to financial institutions.Firstly,the limit on secured claims is not equal to the relief.Secondly,public force intervention restricts the creditors' autonomy.Thirdly,creditor's informed supervision lacks the information mechanism to guarantee.Finally,the financial creditors' committee has not formed a rescue force.The third part introduces the provisions on creditors' protection in the overseas reorganization system,mainly taking the bankruptcy law of USA,Japan,and UK for example.The USA Bankruptcy Law is the most advanced and perfect legal system in the current bankruptcy law research.Its full protection concept,reorganization plan voting rules,information disclosure mechanism,and prepackaged plans all have certain reference significance for China's reorganization legislation.The fourth part proposes some opinions to improve the financial creditors' protection in China's reorganization system.This part is based on the previous discussion,and puts forward targeted suggestions including integrating reorganization ability into reorganization initiation requirements,clearing secured claims' limit rules,providing guaranteed creditors' remediation path;improving information disclosure mechanism and trying to introduce prepackaged plan to increase the financialcreditors' participation in reorganization.