Research On Pre-reformation System

At present,in the practice of bankruptcy reorganization,Chinese enterprises have derived a new way to save enterprises in debt crisis,that is the prepackaged system.It is "a connection between out of court reorganization and in court reorganization" before the enterprise enters the bankruptcy reorganization procedure.From the practical situation in recent years,the prepackaged system plays a certain role in the successful resolution of the crisis and rebirth of the debtor enterprise in trouble.However,due to the lack of legal norms in the prepackaged system,all localities are in the stage of "crossing the river by feeling the stone" in practice,with different practices,inconsistent operations and different effects.This paper starts with local normative documents and cases,finds problems from the legal perspective,and puts forward suggestions for improvement.In addition to the introduction,this paper includes four parts.The first part is the question.China’s law does not make clear provisions on the prepackaged system,but the relevant guiding documents and meeting minutes have stipulated the prepackaged system.At present,local courts have actively practiced,formulated documents related to the prepackaged system,and formed many pre reorganization cases.However,the choice of starting mode of the prepackaged system,the setting of temporary manager and the construction of implementation mechanism are still worthy of our discussion.The second part is the selection of start-up mode of pre reforming.Firstly,it introduces and analyzes the five current start-up modes of pre reorganization in China: Court led mode,government led mode,application based mode,self out of court reorganization mode,self out of court reorganization and application based hybrid mode.Secondly,it expounds the mode that China should choose in the future.By comparing various models and combining with China’s national conditions,pre reorganization should be initiated by the debtor’s application,and the court registration and filing system should be implemented at the same time.The third part is the system structure of pre reorganization temporary manager.First,the title of the pre reorganization management organization is not unified,and it is appropriate to collectively refer to it as the temporary manager;Second,the temporary administrator should not be set up by force.The court or the government does not have to appoint the temporary administrator,but should allow the debtor to manage by itself;Third,the provisional administrator should not be appointed by the court or the government,but should be selected by the debtor and creditor.It is the principle to choose from the list of bankruptcy administrator,or from outside the list of bankruptcy administrator;Fourth,the applicability of temporary managers to the performance of their duties is poor.It is clear that the functions and powers of temporary managers can be divided into assistance and supervision functions and powers.Fifth,the temporary manager can be renewed only if he meets the conditions,but it is not an automatic renewal;Sixth,it is allowed to negotiate and determine the remuneration of the temporary manager without a ceiling.The fourth part is the construction of the implementation mechanism of the prepackaged system.One is information disclosure.Information disclosure in pre reorganization is not unified and clear.China can refine it from the aspects of disclosure subject,object,content,standard,method and responsibility.The second is to prohibit the suspension of execution,the lifting of preservation and the cessation of interest calculation.Suspension of execution,cancellation of preservation and cessation of interest calculation belong to the mandatory legal effect in bankruptcy reorganization and do not conform to the nature of pre reorganization.In the prepackaged system,execution,cancellation of preservation and cessation of interest calculation should not be suspended.The third is the approval of the pre reorganization plan.When the pre reorganization is transferred to the reorganization stage,the principle of the pre reorganization plan is effective,reasonable changes are allowed,and objection relief shall be provided.The fourth is the linkage mechanism between government and hospital.In the prepackaged system,a normalized government hospital linkage mechanism should be established.At the same time,the government and the court should clearly define their respective roles,and should not be absent,offside or give way.