On The Application Of Fairness Principle In Bankruptcy Reorganization

The purpose of the bankruptcy reorganization system is to fairly deal with the debtor's debts,and distribute the operating value of the debtor to all kinds of creditors.In the process of distribution,it should stress fairness and justice,and should not damage the legitimate interests of creditors by using the protection of public interests as an excuse or excessively pursuing the adoption of the restructuring plan.The expression of fairness appears many times in the provisions of bankruptcy law,which is not only the pursuit of fair value,but also the judgment standard in the application of bankruptcy law.Based on the principle of equity and the understanding of civil law,this paper can understand its connotation into three types,namely exchange justice,distribution justice and correction justice.The analysis of its fair realization should be based on the principle of procedural justice and the exception of outcome justice.Formal justice is the principle and substantive justice is the exception.In bankruptcy reorganization,the necessity of the fair principle is reflected in that it is the requirement of the legislative purpose,the embodiment of the social interest standard,the stabilizer of the game between the interests of the people involved,and the successor of the concept of "everyone gets what he deserves".At the same time,bankruptcy reorganization also has its own manifestation of the principle of equity:equity in bankruptcy reorganization is the incremental win-win of stakeholders,the fair protection of the interests of similar creditors,the equality of the proportion of debt repayment,and the equity of debt repayment results.However,in practice,due to the imperfect negotiation mechanism,the asymmetry of information and the failure to take the principle of fairness as the standard of applicable law,it is difficult for creditors to fully express and guarantee their demands for interests,which requires the formulation party of the restructuring plan and the court to fully measure the fairness of the content when formulating and reviewing the restructuring plan.The legal rights of the opposing groups should be fully protected and the interests of all stakeholders in the restructuring system should be treated fairly.In practice,the main contradictions are that the protection of security right is still insufficient with "necessary for restructuring" as the judgment standard,the result is unfair due to the different modes of liquidation of small claims,and the unfair adjustment of investors' rights and interests.The contents of the exercise of the rightsof the secured creditor should be clarified,the exercise of the rights of the "non-restructuring essential" property should be allowed,and the substantial value of the property should be fully protected for the "restructuring essential" security property,so as to fairly protect the interests of the secured creditor;Ordinary creditors should adhere to the judgment standard of "same creditor's right is treated the same,different creditor's right is treated differently",and the small-amount creditor's right group established when necessary should meet the connotation of distributive justice in terms of establishment and repayment rate,that is to say,it should pursue substantive justice on the basis of ensuring equal repayment rate in each amount.For the investor rights and interests shall be adhere to the "same stock rights" under a fair adjustment,priority,at the same time pay attention to the requirement of impartiality,pay attention to the justice of results,need to meet the connotation of corrective justice,increase the controlling shareholder's share of the adjustment,not only is "the same stock rights" principle requirements,but also the embodiment of the interests of corrective justice reply,thus more to protect the rights and interests of small shareholders.