On Selection Of Judicial Power For Reorganization Procedure In Initiative

This thesis is trying to analyze court judicial power initiative during reorganization procedure and the full text is divided into three chapters together.Chapterâ… Running Situation and Reflection on Court Judicial Power during the Corporate Reorganization ProcedureIn this chapter, firstly, it is the introduction of the running situation of court judicial power in corporate reorganization procedure and it mainly analyzes the reasons why court judicial power is involved in reorganization procedure and relative function and power performed in reorganization procedure; secondly, in the 2nd section, the role positioning of court in reorganization procedure at present will be disserted, and thus to get the result that the creditors' role in meeting increases and managers become the center in bankruptcy proceedings and the positioning of court tends to be passive under the form of new enterprise bankruptcy law. However, the current positioning of court makes judicial power difficult to be effective in reorganization procedure. Therefore, the court must relocate its role to meet the needs of social development which is also decided by reorganization procedure's specific characteristics.Chapterâ…¡Selection Basis of Court Judicial Power Initiative in Reorganization ProcedureIn this chapter, court judicial power initiative is interpreted firstly. Through relative analysis of judicial initiative, judicial activism theory and definition of active judicature in our country, we get that there are great differences between active judicature and judicial activism theory which are advocated in practices in China. The current active judicature in our country is about issues of judicial methods, personnel working styles, the court's work extensions and to a certain extent, legal interpretation method and referee theory problems. When this is defined, there is legitimacy and reality foundation existed in discussion of the basis of selecting court judicial power initiative during reorganization procedure. As the part of legitimacy foundation, the selection of court judicial power initiative is existed based on the nature of judicial power, private properties of bankruptcy law and conflict of interests in reforming legislation. As the part of reality foundation, it is mainly because that China is at a specific period of economic transformation and the court will play an important role in enterprise's mergers and acquisitions problems which will exists a large amount in the next period. How the court's advantage position will be played in enterprise's mergers and acquisitions and whether court judicial power is effective in reorganization procedure will directly influence the corporate restructuring process. Through introduction of two reforming cases from home and abroad, we can see the space in advocating court judicial power initiative in reorganization procedure. Therefore, we can conclude that there is necessity to advocate court judicial power initiative in reorganization procedure.Chapterâ…¢Pattern Selection of Court Judicial Power Initiative in Reorganization ProcedureThere should have some limits for active judicature and it can not obey the operation rule of judicial power, and judicial power should play active function limitedly in reorganization procedure. Thus, how to choose the active pattern is a problem that needed to be resolved. In this chapter, the selection of active pattern of judicial power will be described in three aspects, i.e. to advocate judicial initiative in playing innovative roles, transforming functions and perfecting legal rules. In the pattern of playing innovative roles, the positioning of court in reorganization procedure should be transferred from a neutral and passive character into a multiple role which is to command, supervise, coordinate and judge. In the pattern of transforming functions, it is mainly about the transformation from simple program participation into management regulation as to maximize the interests of all parties in the reforming. In the pattern of perfecting legal rules, this thesis promotes some humble suggestions based on the analysis of existing legal loopholes and imperfect legislation during reorganization procedure.