The Laws Of Bankruptcy And Restructuring Control Over Configuration

A timely, effective, fair and transparent reorganization system has become the focal point of the insolvency law reform across the world. In China, up till now reorganization institution is left open under the current legal framework and context.During the drafting course of new insolvency law, systematic design of the reorganization institution is the highlight. Past research is featured by the preponderance of discussion of economic implication of reorganization and comparison of specific institutions between different countries and jurisdictions. In-depth exploitation of reorganization institution and comprehensive analysis of reorganization structure is relatively insufficient. It seems well-timed to analyze the reorganization institution through this lens and from this perspective. Different from past line of thought, the author in this article attempts to analyze the reorganization institution using the controlling power as framework. Based upon the analysis of implication and structure of controlling power and its distribution in reorganization institution, the author put forwards that the very nature of reorganization institution is the redistribution of controlling power toward the corporation among different stake-holders involved in the reorganization process. During the redistribution course, who is entitled to the essential controlling power and ways in which to exercise the controlling power will definitively affect the external shape and internal operation of the reorganization institution.To arrive at the aforementioned conclusion, this article is divided into following chapters:First chapter focuses on analyzing the framework of controlling power in insolvency and reorganization institutions. This chapter is the starting point of this article mainly related to the definition of controlling power and analysis of its specific features. The author holds that the controlling power refers to the influentially determinative power in reorganization process and toward the rehabilitating the troubled enterprises with the ultimate purpose of dragging the corporation out of predicament whether it be financial or business in nature. Compared with the controlling power toward the corporation under normal operation, the controlling power in reorganization process is characterized by the limitations imposed upon the scope of the power to operate business and additional powers conferred upon for the purpose of effectively implementing reorganization institution. The controlling power in reorganization has its institution-specific features and is composed of ultimate controlling power and business operation controlling power. The key issue of ultimate controlling power is how to reach the effective distribution of ultimate controlling...