The Alienation And Perfection Of My Country's Pre-reorganization Practice

As a corporate debt restructuring tool,the concept of "pre-restructuring" has been introduced into China since 2009 and is considered by Chinese scholars to have the advantage of getting companies out of trouble faster than traditional restructuring methods.In March 2018,the Supreme People's Court issued the Minutes of the National Conference on Bankruptcy Trials to encourage the exploration of the interface between out-of-court restructuring and in-court reorganization,and courts around the country have also introduced supporting measures for the reform on a pilot basis.This article aims to clarify the development of the so-called "pre-restructuring" system over the past decade and to provide suggestions for its further improvement.This paper focuses on four aspects.The first chapter introduces the background of the U.S."pre-reorganization" system and the procedural differences between reorganization and pre-reorganization,taking the U.S.law pre-reorganization system as an example.The term "prereorganization" does not formally appear in the U.S.Bankruptcy Code,but has gradually gained attention in the U.S.academic community since the successful reorganization of Crystal Oil Company in 1986.The general theory is that the "prereorganization" procedure is a practical innovation to overcome the inefficiency of "incourt reorganization" and the cost of "out-of-court reorganization".In the third section,the author introduces the case of Pace Corporation's pre-reorganization to explain in detail how the pre-reorganization procedure is applied in U.S.judicial practice.Chapter 2 focuses on the analysis of the "pre-restructuring" system in the Chinese context.In this paper,four courts,namely,Shenzhen Central Court,Beijing First Central Court,Nanjing Central Court,and Guangzhou Central Court,are selected for comparative study of the design of "pre-restructuring" procedures.The author also selected a number of localized "pre-restructuring" cases in China,such as the "Erzhong case",the "Bejing Zhongxing Technology case" and the "Yifeng City case",for analysis.The author argues that the connotation of the "pre-restructuring" system has changed in the process of localization and development in China,and the comparison of the nature,operation,information disclosure procedures,and other participants reveals that the practice of "pre-restructuring" in local judicial documents and practical case studies at the present stage has changed.The practice of "pre-reorganization" has fundamentally changed from the U.S.law of "pre-reorganization" and can only be considered as "pre-review procedure".The essence of U.S.pre-reorganization is outof-court negotiation and reorganization between the parties,but in the Chinese context,the term "government" and "court" has been added to it,although it is not included in the in-court reorganization process in studies and local judicial documents.The conceptualization of Chinese pre-restructuring almost mirrors that of formal restructuring proceedings.The third chapter focuses on the reasons and rationale for the development of localized "pre-reorganization" procedures.It is argued that pre-reorganization can simplify the Chapter 11 process and bring advantages such as low cost and efficiency,because the operator maintains a greater control over the enterprise in prereorganization proceedings,and the debtor has a high degree of initiative and motivation to prepare a pre-reorganization draft and file a reorganization application,which is not yet possible in China's current business environment.The current business environment in China does not meet such requirements.If a "pre-restructuring" procedure is forced at this time,it is not possible to apply it.Thus,the prereorganization procedure has been developed in the process of localization,and the author's analysis shows that the pre-reorganization procedure is necessary to help the public to break the misunderstanding of bankruptcy,optimize the business environment,and help to solve the problems of bankruptcy reorganization.In Chapter 4,the author summarizes the controversies arising from the introduction and development of the concept of "pre-reorganization" in China,and proposes a two-step approach for the future development of the "pre-reorganization" system in China.First,based on the reality,we should improve the "pre-reorganization" procedure on the basis of the exploratory "Guidelines" and "Notice" of local courts,focusing on respecting the status of the debtor,limiting the scope of "prereorganization",clarifying the status of court guidance,and regulating the form of administrative power.form.When the socialist market economy has reached a certain stage of development,it is possible to return to the development of the "prereorganization" system,drawing on the experience of the United States.In the future,the return to the "pre-restructuring" system should focus on the equal protection of creditors' interests,the improvement of "pre-restructuring" information disclosure,and the compliance with the call for votes.