Protection Of The Interests Of Creditors In Corporate Restructuring

Since the policy of reform and opening up to the outer world carried on by Chinese government, the economic institution's reform about the enterprises' property-centered system has been going on and has broken up the only common ownership to introduce more and more inventors to enter the enterprise's reorganization, and set up the modern enterprise's institution. With the continual advancement of the enterprise's reform, the conception of the enterprise's reorganization is often changing and the mode of it is also innovating. Under the way of the enterprise's reorganization, the investors of the enterprise look at what is the profit of capital, but the creditors of the enterprise look at what is their loan's safety and return. So the regulation of the enterprise's reorganization is crucial to the enterprise's owners as well as its creditors.In modern China, the enterprise's owner capital on the enterprise's reorganization to invade the creditors' interest to go after their profit as much as possible, which has stopped the enterprise's smooth reform. At the same time, it has contributed badly to the social economic stability, led to state-owned assets' loss, and has at last done harm to building up the modem enterprise's institution.Under the way of the enterprise's reorganization, we should institute reasonable law and regulations to ensure win-to-win effect between the enterprise's owners and creditors. This article analyses and argues the enterprise's reorganization from five following aspects. First, the author generalizes and criticizes the past conception of the enterprise's reorganization and argues that only the enterprise's owners transfer the control of the company to meet the long-term demands. According to the market economy, the control includes the company's ownership and performing right. It is different from reorganizing enterprises by government's sectors.Secondly, the author analyses the necessity of the enterprise' reorganization and compare with it between America, Japan and China. The three nations' enterprise's reorganization is common to push the capital's movement to make more money, but the specific methods under the way of the enterprise'sreorganization among three nations are very different. Because law and regulations about the enterprise assets' right between America and Japan are advanced to keep the creditors' interest from invading it from the enterprise's owners. In the past, our enterprises were affiliated to the all level governments, which led to the enterprise's poor production efficiency, so the aim of the enterprise reorganization in China is to reduce asset-loss, and augment the enterprise's competition at home and abroad.Thirdly, the author analyses the reason of infringing the creditors' interest in the process of the enterprise's reorganization. According to opportunity theorem and information non-symmetry doctrine, the law subjects may avoid law to take opportunist action, if the supply of law is improper. On the other hand, the author analyses the reason of evading debt from the aspects of history, society, institution, and so on, and argues that the radical reason of evading debt lies in very poor social credit, loophole in law institution and too light punishment of evading debt.This results in the less cost of evading debt and promotes debtors to infringe the creditors' interest.Fourthly, the author analyses the law characteristic of invading creditors' interest. The debtors infringe the principle of integrity and credit in civil law to evade all kind of debt by pretending law person's change, investors' increase or decrease, and so on.Finally, the author comes up with a few of suggestions to protect the creditors' interest in the process of the enterprise's reorganization, the enterprise reorganization is necessary to the development of market economy, It is going along with the pressure of internal capital-pursuing-profit and the external competition from other companies. In order to set up an equilibrium between the interest of the enterprise's debtors a...