On The Legal Issues Of Judicial Intervention In Pre-Reorganization Procedure

Pre-reorganization can effectively fill the institutional gap between out-of-court restructuring and formal restructuring.Many countries have formed relatively mature pre-reorganization legislation.In recent years,the pre-reorganization system has been widely concerned by the practical and theoretical circles in our country,and has been included in the process of bankruptcy legislation.The judicial practice of pre-reorganization in our local courts is active,providing rich local practical experience for the legislation of pre-reorganization.The role of pre-reorganization has been paid more and more attention.Judicial intervention in the pre-reorganization process is necessary.Judicial power is closely related to the administrative power,the rights of parties and the power of auxiliary intermediary in pre-reorganization.Pre-reorganization needs guidance,supervision and coordination of judicial power,which plays its functions of balance of interests,improvement of efficiency and determination of rights.Although the pre-court stage of pre-reorganization is the stage of voluntary autonomy negotiated by the parties,the judicial power should remain modest in it,but if the judicial power does not intervene completely,it will lead to the idling of the pre-reorganization mechanism,which is difficult to be applied in practice.However,in the present practice of pre-reorganization,there are some problems in judicial intervention.First of all,judicial intervention overextends the pre-reorganization function.Some local courts regard pre-reorganization as the pre-review procedure before accepting the judicial restructuring application,or the scope of application of pre-restructuring mechanism set in the practice of pre-reorganization is wrong,and the troubled enterprises that should not be applied to pre-reorganization are included in the scope of application of pre-reorganization.Secondly,there is no rationality in the court’s appointment of auxiliary intermediary agencies.In most pre-reorganization practices in our country,judicial involvement in the election of intermediary intermediary intermediary agencies in the pre-reorganization stage,and even the right to directly appoint intermediary intermediary intermediary intermediary agencies,mostly called "provisional manager".Third,the court intervenes to deprive the parties of the right to start proceedings.It is not conducive for the parties to immediately apply pre-reorganization to rescue the enterprise at the beginning of finding the predicament.Fourthly,the court’s protection function for stakeholders is absent,and the pre-reorganization information disclosure rules and pre-reorganization draft review rules in some local court guidelines are not clear.Internationally,there are many beneficial experiences in typical prereforming legislation,such as American model,British model and Asian practice of judicial power positioning.In view of the legal issues of judicial intervention in pre-reorganization,we should clarify the specific rules of judicial power in pre-reorganization on the basis of clarifying the boundary of judicial power.Combining with the nature of the procedure and the characteristics of the judicial intervention in pre-reorganization,we can clearly define the limits of the appropriateness of pre-reorganization of judicial intervention in our country include to respect the autonomy of parties,grasp the adequacy of measures as well as the advancement of the protection procedure.Furthermore,we can put forward specific rules of exercising judicial power in pre-reorganization of our bankruptcy.It includes that the judicial power should not intervene in the starting procedure of the pre-reorganization process,the conditions of the judicial power intervening in the selection of auxiliary intermediary agencies,the judicial power should not expand the pre-reorganization into the pre-review procedure of the reorganization,and the protection measures of the judicial power to stakeholders should be improved.