The Study On Equitable Subordination Doctrine Applicable In Company Bankruptcy

The equitable subordination doctrine is a measure of protecting ordinary creditors by making the balance of creditors’ interest, It’s originated in America and been introduced to other countries or regions after written into The United States Bankruptcy Code as a statutory law. The equitable subordination doctrine is used in dealing with such insolvency proceedings in many countries or regions, it may haven’t been defined Clearly in the Legal Texts, but also reflects the spirit of the legal rules in such cases.In recent years, the situation of ordinary creditors’ protection getting more serious cause of the increase of Affiliates bankruptcy.Meanwhile, the Creditor protection system current in China is not ideal when dealing with such insolvency proceedings. Or,what’s the relationship between the principle of equitable and regulations of creditor protection current in China? And how to make that principle fitting with our legal system ?This paper will discuss equitable subordination in insolvency rules applicable in the field of our company from four parts with the research methods of historical analysis, comparative analysis、 literature research、case studies to solve the above problems.The first part is an overview of the development of the equitable subordination doctrine. First, through the "Deep Rock case" to summary the purpose of the equitable subordination doctrine; Secondly, to continue to expand the form of case to illustrate the scope of equitable subordination rules; and finally to the United States federal courts principle of equitable subordination applicable requirements done by improving elaborate.The second is the research of jurisprudence on equitable subordination, from the subordinate debt associated with the legitimacy and how subordination, the degree of subordination are introduced. Not all associated claims against the general interests of creditors are therefore not applicable to all related subordinated debt, only to meet certain requirements of the debt associated with the rule applies, which reflects the principle of fairness and justice, whether or ordinary creditors are the controlling party affiliates effective means of protection claims, secondly, on the extent of subordination, according to associated debt situation generated distinguish, can effectively promote the control of the company to comply with the principles of honesty and trustworthiness, illicit association in order to better deal rationally and effectively regulate the behavior of associated companies.The third part makes a contact between the equitable subordination doctrine and existing legal regime relevant comparison interpretation, and thus the necessity and possibility of the introduction of equitable subordination rules were powerful argument. Principle of equitable subordination and company law in disregard of corporate personality system, bankruptcy law Bankruptcy Revocation system and Contract Law Debt Preservation System has a fit of said system for the introduction of equitable subordination rules provide the basis, at the same time its equitable subordination rules also complementary. In addition to the justice of our country have also responded positively to the rule, the legislation repeatedly reflected in the figure of the rule, to solve many cases also reflects the rule. Therefore,from the degree of principle of equitable subordination fit our existing legal system, as well as preliminary exploration in judicial practice obtained, the introduction of equitable subordination rule is feasible.The fourth part analyzes how to build the equitable subordination doctrine in China. The legislative part of the arrangement from the style view, drawing on the relevant national regulations and other academic point of view, based on the combination of China’s actual situation, how to build equitable subordination of the rules applicable to the subject, the conditions applicable to the issue, the applicable procedures.