On The Legal Improvement Of The Rule Of Discharge Of Late Filing Claims In Bankruptcy Reorganization

The rules for the satisfaction of late claims in bankruptcy reorganization have undergone a qualitative leap from the 1988 Enterprise Bankruptcy Law(Trial)to the2007 Enterprise Bankruptcy Law,from an overly strict "no relief" to an overly moderate "unlimited relief".This change has given rise to certain drawbacks at both the legislative and practical levels: the general rule of liquidation of late filing claims in bankruptcy reorganization indiscriminately allows late filing creditors to be paid the same as similar claims after the reorganization plan is completed,which is unfair to active filing creditors and increases the risk to the enterprise and its investors after the reorganization.Against the background of the third historical leap of China’s Enterprise Bankruptcy Law,this paper,based on the basic theory of the claim filing system in bankruptcy reorganization,distills the dilemma of the late filing claim settlement rules in the current Enterprise Bankruptcy Law,combines the three modes of response in the current practice,and draws on the experience of overseas settlement rules to propose corresponding suggestions and countermeasures for the improvement of the late filing claim settlement rules in bankruptcy reorganization in China.In this paper,we propose corresponding suggestions and countermeasures for the improvement of the rule of late filing claims in China’s bankruptcy reorganization,in order to help the legislation and practice of enterprise bankruptcy reorganization.The first part of the article is a fundamental theoretical analysis.The provisions of Article 92(2)of the current Enterprise Bankruptcy Law,which are both progressive and flawed,have triggered widespread controversy and even stimulated profound analysis of its jurisprudential basis in academic circles,leading to a game between the value of continuing business and the protection of creditors’ interests.This paragraph takes the position of generalized and adequate relief for the rights of late filing creditors,which makes the continued business value of "regeneration" of the reorganized enterprise marginalized.The second part of the article is the distillation of the realistic dilemma.Based on the relevant provisions of China’s current legal system on the rules of late filing claim settlement,it is extracted that the current rules of settlement in China have such practical dilemmas as the lack of provisions on the period of supplementary filing of claims,complete relief against the original legislative intent,and the dislocation of norms on the review and confirmation procedures of late filing claims.The third part of the article introduces the three response models in China’s current practice.In practice,in order to avoid "regenerated" enterprises from falling into secondary bankruptcy due to late filing of "unscheduled" claims,there have been such countermeasures as the set-aside model,the sale model to segregate debts and the reorganization plan to exclude unreported claims.Each has its own advantages and disadvantages,and none is a foolproof solution.Part IV of the article focuses on the experience of extraterritorial discharge rules.The legislation of bankruptcy laws in France,Japan,Germany and Chinese Taiwan answers the question of the balance between the relief of such claims and the maintenance of the overall fairness of the reorganization system by distinguishing the causes of late filing claims.There are three main types of reasons: factors attributable to the creditor itself,factors not attributable to the creditor itself,and the existence of causes that are not attributable to the creditor itself.The most important feature of the U.S.reorganization system is the "debtor-centered" approach,which generally exempts the debtor from liability upon approval of the reorganization plan by the bankruptcy court,although there is already case law on the "priority traversal rule" and the "public interest priority" approach.The "public interest override" exception has emerged in case law.The extraterritorial experience of the rule of late filing of claims in bankruptcy reorganization provides a more enlightened idea for the improvement of bankruptcy law in China.The fifth part of the article proposes legal suggestions to improve the rules of late filing claims in bankruptcy reorganization based on practical and overseas experience.While distinguishing substantive rights from procedural rights,it should follow the "limited remedy" of rights and respect the content and effectiveness of the reorganization plan based on the continuity of business,without violating procedural justice and public order and morality.The statutory cause of "statute of limitations suspension" should be used as a criterion to distinguish the reasons for late filing of claims,and the period of exercise of non-filed claims should be limited by applying the statute of limitations suspension system in an alternative manner.Specifically,the period of supplementary filing is determined for late filing claims,and the interruption of the statute of limitations is introduced.Taking the end of the supplementary filing period as the boundary,the late filing claims are divided into two stages: the first stage is from the expiration of the filing period announced by the court to the day before the expiration of the supplementary filing period,which is the "late filing" of the late filing claims.The claims of "late filing" shall be remedied in accordance with Article 92(2)of the Enterprise Bankruptcy Law.The second stage is from the expiration of the supplementary filing period,which has no deadline according to the current bankruptcy law in China,and is a "non-filed" claim among the late filed claims.The "unreported" claims do not have the effect of interruption of the statute of limitations,and the relief for such claims can be applied to the statute of limitations suspension system in an alternative manner.The review and confirmation procedure for the exercise of late claims shall be handled by the administrator in accordance with the corresponding procedure when the administrator normally handles the affairs of the reorganized enterprise,otherwise,the claims shall be reported to the debtor and reported to the People’s Court for the record after the debtor’s review and confirmation.