Research On The Construction Of The Legal System Of System Of Substantial Merger And Bankruptcy Of Related Enterprises

Although the substantive merger bankruptcy system of affiliated enterprises has been initially applied in China s judicial practice,and it has played a significant role in promoting the efficiency of bankruptcy and ensuring fair repayment,which has the advantages that the current legal system can not replace.However,at present,there is no formal legal normative document on the substantive merger bankruptcy system of affiliated enterprises.For some relatively cautious and conservative courts,it is impossible for this system to be adopted.In view of this phenomenon,the Supreme Peoples Court issued the Minutes of the National Court Bankruptcy Trial Work Conference.However,because most of the contents in it are principled provisions,there are still many problems when it is applied to practice.Specifically,there are two aspects:first,there is no unified standard to identify the problems of high confusion of legal personality,high cost to distinguish the property of members of affiliated enterprises and serious damage to the interests of creditors fair repayment in substantive law,and most of them rely on the discretion of judges,and the applicable standard is in addition to the key applicable standard of high confusion of legal personality The other applicable standards can not be applied independently in judicial practice,so we must combine the key applicable standards to successfully apply for substantive merger bankruptcy.In short,other applicable standards do not adapt to China s judicial practice;second,there are no clear provisions in the procedural law on the determination of the subject of bankruptcy application for substantive merger of affiliated enterprises,the selection of the initiation procedure,the distribution of the burden of proof,the selection of the administrator and the relief of the rights of interested parties,which can not provide an applicable bankruptcy procedure for judicial practice The order template can only continue to use the bankruptcy procedure to solve the bankruptcy of a single enterprise,or according to the actual situation of the case,the judge can make minor modifications or innovations on the basis of the original bankruptcy procedure,which leads to the judges in different regions applying different substantive merger bankruptcy procedures in the bankruptcy cases of affiliated enterprises,or directly avoiding the substantive merger bankruptcy system in order to avoid trouble.These objective problems are very disadvantageous to the substantive merger bankruptcy system which has the advantages that the current legal system can not replace,and may even hinder the process of the development of bankruptcy legislation in our country.We not only need to pay attention to them,but also need to try to put forward solutions to the problems.Compared with the mature substantive merger bankruptcy rules of foreign countries,it reflects that there are obvious problems in the application standard and application procedure of the substantive merger bankruptcy system of affiliated enterprises in China.On the basis of drawing lessons from the experience of foreign mature bankruptcy rules of substantive merger of affiliated enterprises,considering China s specific national conditions and combining with the real situation of the substantive merger bankruptcy system in the current legislative and judicial practice,the specific paths to improve the substantive merger bankruptcy system of affiliated enterprises in China are as follows:In terms of applicable standards,by summarizing the existing views of scholars at home and abroad and the specific situation in judicial practice,this paper comes to four applicable standards: high confusion of legal personality,fraud standard,creditor s income and reorganization need.Then it elaborates the independence,importance and operability of the four standards to unify the substantive merger bankruptcy system of affiliated enterprises in China The applicable standard of the standard.Independence and importance are reflected in characteristics,while operability is reflected in behavior.In terms of applicable procedures,based on the bankruptcy procedure of a single enterprise,appropriate adjustments should be made according to the particularity of affiliated enterprises.Specifically,the scope of the application subject is extended to the court;the initiation procedure is that the court respectively accepts the bankruptcy application of the affiliated enterprise,after examination,decides the substantive merger bankruptcy,and then pays off all creditors in a centralized way;the burden of proof is no longer limited to the rule of who claims who provides evidence,but fully considers the ability of the application subject to provide evidence,according to the law of the application subject on the affiliated enterprise The burden of proof is divided according to the degree of understanding of the confusion of personality;the manager is the manager of the core control enterprise;the relief of the interested party is not only to give the interested party the right to review the substantive merger bankruptcy ruling,but also to give the interested party the right to claim compensation for the damage of interests.In addition,we should give full play to the role of the hearing procedure in advance and the review procedure of the court in the event,so as to make the ruling of substantive merger bankruptcy conform to the wishes of all interested parties as far as possible.Through the establishment of a comprehensive and effective relief mechanism before,during and after the event,to protect the rights and interests of interested parties.