On The Application Of Bankruptcy Rules For Substantive Merger Of Affiliated Enterprises

At present,the substantive merger and bankruptcy rules of affiliated enterprises have been widely used in judicial practice,but due to the lack of the guidance of written law,there are various operation methods in practice,including both typical cases of balancing the interests of all parties and negative cases of evading the reality of debt cancellation through institutional loopholes.In response to the needs of practice,this study is carried out to promote the legislative establishment and judicial application of the rule in our country.In the absence of written law,through the analysis of the existing meeting minutes,guiding provisions and relevant cases,the application of the bankruptcy rules of substantive merger of affiliated enterprises is mainly reflected in the applicable standards and procedures.In terms of applicable standards,China has excessively improved the status of the mixed standard of legal personality in the identification process,ignoring the importance of auxiliary standards such as fraud standard,creditor benefit standard and reorganization need standard.In the process of identifying the confusion of corporate personality,there is also a lack of attention to the elements of financial confusion.In terms of applicable procedures,due to the different guidance documents for pilot projects in various regions,there are different operating methods in the determination of the competent court,the commencement of procedures,the review of substantive consolidated bankruptcy applications,the appointment of managers and so on,which urgently need to be unified.In view of the problems in the applicable standards and procedures of the rules,China should carry out corresponding optimization exploration.In terms of applicable standards,we should pay more attention to the auxiliary standards on the basis of focusing on the mixed standards of personality,and give full play to the decisive role of financial mixed elements in the mixed standards of corporate personality.In terms of applicable procedures,we should combine the existing practical experience to summarize the universal procedure operation methods,which are embodied in the determination of the competent court dominated by the interest center,the use of holistic thinking to select the start-up mode,the use of public hearing to review the consolidated bankruptcy application,the flexible use of the joint administrator mode and so on.Through continuous optimization and exploration,the application of this rule in China will play its due effect.