| Since the 1990 s,China has started to study debt to equity swap.Since 1999,China has issued a number of legal documents to support and guide the implementation of debt to equity swap.Among them,the most representative is The Administrative Measures for the Registration of Corporate Bond to Equity Swap(now abolished)issued by the State Administration for Industry and Commerce in 2012,and in 2016,the State Council issued The Opinions on Actively and Steadily Reducing the Leverage Ratio of Enterprises and its annex Guidance on Debt to Equity Swap of Market-oriented Banks.Up to now,the market-oriented debt to equity swap has been widely used in reducing the non-performing loan rate of banks,reducing corporate liabilities,and maintaining the stability of the financial market.Its role and influence in bankruptcy reorganization are also increasing.It is a system that can achieve win-win results in many ways,and we need to strengthen the implementation.This paper limits the scope of discussion to the market-oriented debt to equity swap in bankruptcy reorganization,which is different from the policy debt to equity swap.The market-oriented debt to equity swap is market-oriented and emphasizes market-oriented.China is very supportive of the implementation of market-oriented debt to equity swap.However,most of the current legal documents and guidance suggestions issued for market-oriented debt to equity swap only provide provisions and guidance on the principle and procedure of market-oriented debt to equity swap,but do not provide answers or solutions to the legislative conflicts between market-oriented debt to equity swap and other departmental laws,legal disputes faced by market-oriented debt to equity swap,and legal problems encountered in the implementation process.At present,there is no clear,specific and commanding high-level law in China to regulate the market-oriented debt to equity swap and its implementation.There are legal problems in both theory and practice.Under the current economic background,the implementation of market-oriented debt to equity swap in bankruptcy reorganization has its necessity,so it is also necessary to solve the legal problems related to market-oriented debt to equity swap in bankruptcy reorganization.The purpose of this paper is to analyze and solve the theoretical and practical problems of market-oriented debt to equity swap in bankruptcy reorganization,so as to increase the enthusiasm of creditors to participate in market-oriented debt to equity swap,better promote the implementation of market-oriented debt to equity swap,and thus avoid a large number of enterprises from entering the bankruptcy liquidation process and maintain the stability of the financial market.Determining the legal attribute of market-oriented debt to equity swap in bankruptcy reorganization is the logical premise of studying market-oriented debt to equity swap.The article advocates the equity contribution theory on the legal attribute of the market-oriented debt to equity swap,and holds that the market-oriented debt to equity swap has liquidity,investment,entity and procedure at the same time,and should be adjusted by the bankruptcy law,the company law and other relevant laws at the same time.This determines that when analyzing the legal issues related to the market-oriented debt to equity swap,we should not only consider it from the perspective of bankruptcy law,but also make a composite analysis from other legal perspectives such as company law and bank law.Because the relevant regulations of the market-oriented debt to equity swap are not clear enough and there is no authoritative superior law,the debt to equity swap can only be guided by the legal documents and guiding opinions issued by various departments,which makes the debt to equity swap system have some controversial legal problems in theory and practice.The solution of the legal problems on the theoretical level of market-oriented debt to equity swap can make the operation mode of the whole debt to equity swap system more clear,and at the same time make the relevant creditors who are still waiting have a clearer understanding of market-oriented debt to equity swap,and increase the enthusiasm of suitable creditors to participate in debt to equity swap.As for the legal problems faced by the market-oriented debt to equity swap in specific practice,the article analyzes and expounds the causes,logical background and adverse effects of these legal problems,and puts forward relevant solutions,in order to solve these practical legal problems and obstacles and better promote the implementation of the market-oriented debt to equity swap. |
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