The Study On The Substantial Merger And Bankruptcy Of Enterprises

Bankruptcy is a kind of institutional choice that the market economy realizes the survival of the fittest for economic entities.It is based on the system construction from a dual perspective.On the other hand,we should maintain the fair access and exit order of the market economy,complement the complete operation mode of the market economy,and form the normal exit mechanism of the main body of the market economy.Based on the promotion of the normal bankruptcy procedure,more complicated and complicated legal problems are emerging in the current judicial practice of our country,which constantly impact and hinder the original intention of the legal interest of the bankruptcy system.Among them,the identification of the bankruptcy legal relationship of affiliated enterprises is one of the key problems that current theories and practices try to break through.In the increasingly fierce market under the laws of nature,business entities also constantly seek to enhance their solid,improve the economic benefit,resist risk entity model of the new situation,under the background of the "association" as the existence of many enterprises to choose,but based on the relevance of explicit and implicit way,the indemnification of compliance as well as the universality of relationship abuse behavior,it implies the damage the interests of creditors in bankruptcy practice,destroy the normal order of market exit of risk,and greatly increased the judicial organ for the execution of the cognizance of the bankruptcy property boundaries and bankruptcy claims the judicial cost.In the face of the challenge from the bankruptcy of affiliated enterprises to the existing bankruptcy legal system,it is still difficult to break through only from theperspective of the denial of personality system in the company law,bankruptcy revocation and bankruptcy invalidity in the bankruptcy process.Owing to this,this article introduced for affiliated enterprise merger of the bankruptcy system,as the import of American bankruptcy law,at present our country for affiliated enterprise merger bankruptcy,there is no clear legal system,but for the theoretical study of the contents of this subject and the system idea constantly emerging,and in the judicial practice of the court has accepted a substantial merger bankruptcy case,and make relevant decision is worth thinking about.In the whole content,this paper realizes the transition from basic theory to judicial practice,and tries to start from sorting out the theoretical origin of the substantive merger system,supplemented by the analysis of judicial practice cases,so as to provide a good introduction for the current study of China's bankruptcy system.In addition to the introduction,this paper consists of four chapters,the main contents of which are as follows:Part one: basic theory of substantial merger and bankruptcy.This part takes the abstract theory of substantial merger and bankruptcy as the main line,starts with the definition of substantial merger and bankruptcy in various countries,and clarifies the core and theoretical basis of this article.Through the comparative analysis of substantive law theory and enterprise entity theory,the trend of economic integration of related enterprises is deeply analyzed and accurately revealed.In addition,four cases are combined.Clarifying the process of substantial merger system from the initial stage to the establishment of standards,and finally based on its legal basis of profound reflection.Part two: the necessity of establishing the system of substantial merger of related enterprises.With the development of the integration process of market economy and the increasingly implementation of modern enterprise system,the traditional single enterprise form has been difficult to meet the requirements of expanding the market,improving profits and avoiding risks,and the associated enterprises emerge at the historic moment.Due to its unique internal structure and operation mode,it is often accompanied by fraudulent property and debt transfer,associated guarantee,mixed assets and operation,the establishment of shell companies and other situations that damage the rights and interests of creditors.This kind of interest transfer poses a threat to the protection of creditors in bankruptcy proceedings and the maintenance of basic order.Through the reflection on the special problems and harms of thebankruptcy of affiliated enterprises,this paper enumerates the limitations of the existing regulation means of the bankruptcy of affiliated enterprises.This part is the research significance of this paper.Part three: the judicial evolution of the substantive merger and bankruptcy of China's affiliated enterprises.This part starts from the evolution and analysis of the judicial text of the substantive merger and bankruptcy of affiliated enterprises in China,and combines the guiding opinions of some provincial higher people's courts to explore the judicial attitude towards the substantive merger and bankruptcy of affiliated enterprises in China.In addition,through a brief analysis of some typical cases in China's judicial practice,the author reflects on the current judicial dilemma of China's substantive merger system and lays a practical analysis foundation for the content of the system construction afterwards.Part four: thoughts on the construction of the substantive merger and bankruptcy system of China's affiliated enterprises.About the real merger system based on the above,the necessity and real merger associated enterprises in our country judicial present situation and the analysis of the practical difficulties,the author combined with the reality of our country in this part,from the essence combined system of principles,specific applicable elements and the perspective of program specification,this paper discusses the specific content of constructing the essence combined system in China.It also makes a comprehensive consideration on the five dimensions of the start-up mode,judicial jurisdiction,the applicant,the burden of proof of the applicant and the protection of the dissenting interested parties.