On The Perfection Of The Compulsory Approval System Of The Bankruptcy Reorganization Procedure In China

The compulsory approval system in the bankruptcy reorganization procedure is the intervention and guidance of the court to the party's will autonomy by using the public power.It is the system that the court approves the reorganization plan which has not been approved by all the voting groups in the way of ruling,so that the interests of the parties can be guaranteed,the enterprise can be reborn and the social benefits can be realized.This paper starts with the problems existing in the case of compulsory approval and puts forward suggestions to improve the system.This paper is divided into four parts.The first part introduces the legislative status and practical problems of the compulsory approval system in China.That is to say,the abstract and vague legislative provisions lead to the problem of the position losing evidence;the entity problem of the principle of the minimum acceptance being in vain,the principle of the maximum interests of creditors not being implemented,and the imbalance of the interests distribution between shareholders and new investors;the procedural problem of the lack of the hearing system to express objections to the compulsory approval and the right relief system.The second part introduces the legislative experience of the United States,Japan and Germany on the above issues,and on the basis of comparative analysis,seeks the experience system that meets the local needs.Such as the minimum acceptance rules,the liquidation floor rules and rights protection rules to ensure the maximum interests of creditors,the new value rules to balance the interests of shareholders,the mandatory pre-determination hearing system and the post-determination appeal and protest rights relief system.The third part reshapes the theoretical value orientation of the compulsory approval system.It is pointed out that the proper position of applying the compulsory approval system is based on the second consultative vote of the dissenting voting group,which is consistent with the concept of reorganization and seeks a balance between "careful use" and "fear of use".The fourth part puts forward concrete suggestions from entity and procedure.The entities include:(1)defining the minimum rules adopted by at least one creditor group whose rights and interests are reduced;(2)repositioning the principle of maximizing the interests of creditors,defining the calculation standard of simulated liquidation value and conducting substantive review,and establishing a credit risk compensation mechanism;(3)introducing the new value principle to adjust the interest distribution between shareholders and new investors.The procedure includes:(1)strengthening the pre-trial hearing system;(2)establishing the right of retrial application or appeal of interested parties.