Research On Legal Issues Of Substantive Merger And Bankruptcy Of Affiliated Enterprises In My Country

Affiliated enterprises are the inevitable outcome of the rapid economic development of our country.Affiliated enterprises not only help enterprises to expand their business scale and promote market competition,but also challenge the traditional company law.Under the business model of affiliated enterprises,driven by interests,the affiliated enterprises may go beyond the normal scope of transactions,and abuse of related transactions,which not only damage the assets of the enterprises,but also damage the interests of the creditors who rely on the independence of the related enterprises to trade with them.China’s current bankruptcy law has no provisions on the bankruptcy of affiliated enterprises.At present,China mainly depends on the system of denial of corporate personality,the principle of equitable subordination,bankruptcy revocation and invalidation system to solve the various problems of bankruptcy of affiliated enterprises.The current legislation is somewhat inadequate in solving practical problems,so there are a lot of disputes in judicial practice.Based on this situation,the substantive consolidation bankruptcy came into being as one of the means to deal with the bankruptcy of affiliated enterprises.According to the needs of the existing judicial practice in our country,the author intends to study the legal issues related to the substantive consolidation doctrine in the bankruptcy of affiliated enterprises.The first part is an overview of the basic theory of the substantive consolidation doctrine in the bankruptcy of affiliated enterprises.First of all,compared with the system of denial of corporate personality,the principle of equitable subordination,the system of bankruptcy cancellation right and the invalid system of bankruptcy,the author analyzes the institutional roots of the substantive consolidation bankruptcy of the affiliated enterprises;secondly,it proves the necessity of applying the substantive consolidation bankruptcy system,In the fourth part,in view of the problems existing in the process of substantive consolidation doctrine in the bankruptcy of affiliated enterprises in China,it has independent applicable significance in the bankruptcy of affiliated enterprises,but it should be applied cautiously.The second part,through empirical analysis,points out the main problems existing in the process of the substantive consolidation doctrine,including the current legislative rank needs to be improved,the unclear scope of application of substantive consolidation,the single applicable standard of substantive consolidation,the disunity of the examination mode of substantive consolidation application,the inadequate protection of the interests of dissenting creditors and so on.The third part introduces the extraterritorial ways to deal with the bankruptcy of affiliated enterprises,which can be divided into substantive consolidation path and non-substantive consolidation.And analyzes the substantive consolidation rules adopted by the United States,Australia and the United Nations,and analyzes the procedural coordination rules adopted by Germany,so as to explore the experience that our country can use for reference from the perspective of comparative law.In the fourth part,in view of the problems existing in the process of substantive consolidation doctrine in the bankruptcy of affiliated enterprises in China,the author puts forward some suggestions.On the substantive elements,the judgment criteria of the related enterprises of the applicable object are quantified.The author put forward the applicable standard of the combination of the two elements as the applicable standard of substantive merger.In terms of procedural elements,the mode of examination should be unified into the mode of "hearing + court ruling".And give dissenting creditors the right of appeal.