Research On The Substantial Merger And Bankruptcy Of Affiliated Enterprises

Affiliated enterprises have attracted much attention,as soon as they appear.They integrate the resources of different member enterprises,which have independent legal personality,and are connected into affiliated enterprises based on the common economic purpose.This complex structure brings many problems to the bankruptcy of affiliated enterprises.How to balance some conflicts existing among the interests of member enterprises,and how to ensure that the creditors of each enterprise get fair compensation are the challenge faced by the court.Some affiliated enterprises are confused in many aspects such as personnel assets,liabilities,operation and finance,which is not conducive to carry out the bankruptcy work.In view of the many legal problems existing in the bankruptcy of affiliated enterprises,the American court created the equity rule of "substantial merger and bankruptcy".This rule consolidates the assets and liabilities of member companies as a unified bankruptcy entity,from which all creditors can receive fair payment.Although the academic in China still have doubts with this rule,there have been a large number of cases in judicial practice.In 2018,the Supreme Court of China issued the minutes of the bankruptcy trial work meeting,which affirmed the value of the substantial merger and bankruptcy.But these provisions can't solve the problem in practice.Based on the study of relevant monographs and judicial cases,the author analyzes and demonstrates the substantial merger and bankruptcy of affiliated enterprises,including five parts.The first part introduces the overview of substantial merger and bankruptcy,carries on the legal identification to the affiliated enterprises,defines the concept of the affiliated enterprises from the perspective of law and economics,and analyzes its legal attributes.This paper introduces the theoretical basis of substantial merger and bankruptcy which is the entity theory.This paper introduces the connotation of substantial merger and bankruptcy,and analyzes the relevant overseas legislative experience,mainlyintroduces the United States,Germany and other countries,so as to summarize the practical enlightenment to China.The second part analyzes the necessity and feasibility of the substantial merger and bankruptcy in our country.The necessity of substantial merger and bankruptcy is mainly discussed from three aspects: there are special problems in the bankruptcy of affiliated enterprises in China;the current law of our country cannot meet the practical needs and the legalization of the business environment requires enterprises to withdraw from the system.The feasibility of substantial merger and bankruptcy is also discussed from three aspects:the value pursuit of bankruptcy law,the overall interest pursuit of related enterprises and the successful exploration of judicial practice.The third part expounds the problems existing in China's judicial practice of substantial merger and bankruptcy.Because China's current law does not provide for the substantial merger and bankruptcy,only the meeting minutes provide for it,so the application of the rules lacks legal basis.In the trial of specific cases,the court does not unify the judgment standard of rules,and there are many problems in the procedure.The fourth part analyzes the judgment standard of substantial merger rules.China adopts a prudent and applicable attitude towards the application of rules,so the judgment standard cannot be single.The court should comprehensively consider the degree of corporate personality confusion among the members,whether the establishment of the enterprise is fraudulent or has specific purposes,as well as the protection of the interests of creditors,the need for corporate restructuring and the trust interests of creditors.The fifth part deals with the procedural problems of substantial merger rules.The author divides the initiation of bankruptcy proceedings into four types,and solves the problems of jurisdiction,the subject of application and the coordination of starting points of related procedures in the reorganization procedure.When the court makes a decision,it will go through the hearing procedure,and at the same time,it will give the creditor the right of objection,so as to fully protect the interests of the creditor.And this paper analyzes thesubject qualification of affiliated enterprises after bankruptcy.