The Construction Of Prepackaged Bankruptcy In China

Prepackaged bankruptcy was originated from judicial practice in the United States.It means that some or all parties have negotiated and reached a reorganization plan(or may not have reached a reorganization plan)before they formally apply to the court for reorganization,and then,a formal application to the court for reorganization of judicial proceedings would be applied under the conditions of the negotiations that have been reached.Since Crystal Oil Company successfully broke away from financial distress through the prepackaged bankruptcy in 1986,the prepackaged bankruptcy has gradually become a research hotspot in the judicial practice and legal academia.It combines the advantages of traditional reorganization and out-of-court reorganization.The prepackaged bankruptcy can not only avoid the time-consuming,heavy-cost problems of traditional reorganization,but also avoid the "hold-out" problem and "free-rider" problem that may occur in out-of-court reorganization.In recent years,due to the incomparable advantages of prepackaged bankruptcy and more and more successful cases,both the civil law system and the common law system have begun to explore the system of prepackaged bankruptcy in legislation and practice.With the deepening of reform in economic system,more and more zombie companies have emerged,and the deficiencies of the bankruptcy reorganization system have gradually appeared.We believes that it is necessary to introduce prepackaged bankruptcy system to make up for the deficiencies in bankruptcy reorganization system in China.This article develops with this background,and divided into the following four parts:The first part introduces the connotation,types and advantages of the prepackaged bankruptcy.First,it compares the definitions of prepackaged bankruptcy by domestic and foreign scholars,in order to limits the research objects of this article,and at the same time classifies the types of prepackaged bankruptcy.The advantages of the prepackaged bankruptcy compared with traditional reorganization and out-of-court reorganization was explained in this part,which provides the necessary theoretical basis for the discussion of the construction of prepackaged bankruptcy later.The second part makes a comparative analysis of the prepackaged bankruptcy system.First,by introducing the rules of the prepackaged bankruptcy system in the United States,the United Kingdom,Japan,and South Korea,and then by comparing and analyzing the prepackaged bankruptcy systems in the United Kingdom vs.the United States,and Japan vs.South Korea,from the experience of the above countries,the enlightenment to the construction of prepackaged bankruptcy system in China can be obtained.The third part introduces current exploratory regulations and judicial practice on prepackaged bankruptcy system in China.The part in exploratory regulations are mainly horizontal analysis and comparison of the relevant regulations issued by the Beijing Bankruptcy Court,Shenzhen Intermediate People’s Court,and Wujiang District Court of Suzhou.The part in judicial practice is mainly about the development trend,geographical distribution and model of prepackaged bankruptcy cases.and three types of prepackaged bankruptcy cases were introduced in combination with legal cases.The fourth part is the construction of prepackaged bankruptcy in China,including macro assumptions and specific suggestions.Based on the experience of prepackaged bankruptcy in foreign countries and based on the national conditions of our country,In macro presentation:the legislative purpose of prepackaged bankruptcy should be clarified,and the relationship between prepackaged bankruptcy and reorganization should be well positioned,and the stage after an application for bankruptcy liquidation accepted by the people’s court and before going to the reorganization,should be included in the prepackaged bankruptcy,which is regulated in the form of judicial interpretation.In micro presentation,corresponding suggestions are proposed on the freezing of creditor’s rights and protection of trade creditors,suspension of execution,information disclosure,voting procedure,creditors’ committee,loans to remain in business,examining and confirming the creditor’s right,and dealing with prepackaged failure.