Research On The Improvement Of Reforming Financing Creditor Priority Protection

From liquidationism to reconstructivism,the restructuring debt liquidation system breaks the shackles of troubled enterprises that are bound to bankruptcy liquidation,which not only provides a nirvana opportunity for enterprises with restructuring value,but also helps to achieve the optimal state of interests of all subjects.However,the current bankruptcy restructuring system in China is still in its infancy,and many institutional arrangements are immature.In particular,the introduction of restructuring financing is a key aspect of enterprise restructuring and regeneration,but the current restructuring financing creditor protection can hardly meet the realistic needs of troubled enterprises to seek external financing for regeneration,and financing difficulties even become the resistance to enterprise regeneration,resulting in a low application rate of bankruptcy restructuring procedures in practice.Specifically,China’s current bankruptcy restructuring system lacks effective protection for restructuring financing creditors.Although reorganization financing claims can obtain priority in bankruptcy proceedings by reference to common debts in accordance with Article 2 of Interpretation III of the Bankruptcy Law,the relevant regulations are rather conservative and sloppy,lacking clear responses to the legal nature and priority of reorganization financing claims,and a single financing model with reference to common debts cannot provide effective institutional incentives for reorganization financing.In other words,the current system of priority protection for restructuring financing claims in China is not suitable for the vivid and diversified restructuring practice,either in terms of content or procedure,and thus cannot effectively guide the practice.Therefore,it is necessary to study the issues related to the preferential protection of restructuring financing claims,and try to clarify the endogenous properties of the preferential protection of restructuring financing claims,i.e.,the structure of co-benefits,based on the practical difficulties faced in judicial practice.On this basis,the advantages and shortcomings of the co-benefit debt financing model are explored,and the rationality and necessity of giving priority to reorganization financing claims are clarified,and the current rules and practices are reviewed with a view to improving the structure of the rules.In addition,we will draw on the experience of the comparative law perspective,and take the U.S.mixed-combination super-priority model and the Japanese community liabilities model as typical representatives to provide guidance and reference for the optimization of the priority protection system for restructuring financing claims in China.Regarding the improvement of the priority protection of reorganization financing claims in China,firstly,the reorganization financing claims should be clearly stipulated as a legal type of common interest debt,and their independent value of priority protection should be recognized without the influence of procedural conversion.Secondly,the scope of application of priority protection for restructuring financing claims should be expanded accordingly.On the one hand,the time point for judicial determination should be extended to the out-of-court restructuring stage of the pre-reorganization process.On the another hand,the scope of "borrowing" should be expanded to "debt financing",and the legal structure of acquisition mortgages in the Civil Code should be used to create new forms of security to facilitate financing by setting up security for financing creditors with expected benefits and incremental property.Finally,under special circumstances and under appropriate conditions,reasonable restrictions can be imposed on secured creditors to allow troubled companies to raise funds by setting super-priority,with a view to providing comprehensive priority protection for reorganization financing claims.This breakthrough of the absolute priority principle can be achieved through the path of self-government,i.e.,through private law autonomy to change the priority of liquidation and the procedural obligation to file with the public authority,i.e.,the court.It is expected that the improvement of the system of priority protection of reorganization financing claims will be beneficial for balancing the interests of all parties in the reorganization,optimizing the business environment and giving full play to the functions of the bankruptcy reorganization system.