关联企业实质合并破产的制度构建

Abstract

The substantive merger and bankruptcy rules of affiliated companies originated from the U.S. precedents, and gradually established the framework and rules for the substantive merger and bankruptcy of affiliated companies through U.S. precedents, which solved the problems caused by the bankruptcy of affiliated companies. In the judicial practice of my country's bankruptcy law, in order to resolve the confusion of related enterprise property, protect the interests of creditors, and reduce unnecessary bankruptcy costs, in the absence of provisions in my country's bankruptcy law, my country has introduced the substantive merger bankruptcy rules of related enterprises in response. Realistic judicial needs. In the early judicial practice, the judgment was mainly based on the standard of "confusion of legal person personality", the applicable standard was relatively single, and other standards were rarely used for auxiliary analysis. From the exploration of judicial texts, before 2018, there was no judicial document stipulating the substantive merger and bankruptcy of affiliated enterprises. It was not until the "Meeting Minutes" in 2018 that the substantive merger and bankruptcy substantive standards and procedural rules were stipulated. In terms of substantive standards Extend the substantive merger and bankruptcy of related enterprises from the existing single personality confusion standard to include the difficulty of separating assets and the creditor's interest standard. Regrettably, the "Corporate Bankruptcy Law" does not provide for the bankruptcy rules for the substantive merger of related companies. In view of this, when the 2021 annual legislative work plan incorporates the "Corporate Bankruptcy Law" into the law, the "Corporate Bankruptcy Law" should Incorporate the substantive merger and bankruptcy rules of affiliated companies, and improve the substantive and procedural rules for merger and bankruptcy of affiliated companies on the basis of the "Meeting Minutes."