Research On The Subordination Of Shareholders’ Credit In Bankruptcy

The subordination of shareholders’ credit,which means the shareholders’ claims after the ordinary claims under certain conditions,is important to ensure the principle of equal rights.When shareholders as corporate creditors,the identity of a dual nature,especially the controllingshareholders can control the company,let them have more advantages comparing with the ordinary creditors.First,the controlling shareholdermay use its identity advantage to conduct misconduct,so that there are unfair factors in the establishment and guarantee of its claims.Second,shareholderloanis an important means of financing for the company,and shareholders tend to confuse the loan and capital,and according to the company business conditions to determine whether the money as a creditor or capital contribution,and these measurescan avoid the responsibility of the shareholders.Considering the particularity of shareholders of creditor’s rights,the author puts forwardshareholders claims after the creditors’ rights when shareholders claims meet the certain conditions.In other countries in view of the specialty of the shareholders of creditor’s rights,and considering the development of the affiliated enterprise significant impact to the principle of equality of the rights of the creditor,developed“equitablesubordination rule”,“doctrineof debt recharacterization” and “doctrineof equity substitution”,although the systems is different,but ultimately the shareholders’ claims under the ordinary claims under specific conditions.China should also consider the introduction of the subordination of shareholders’ credits,so as to better balance the interests of the company,shareholders and creditors.This article mainly from the following four aspects to discuss the construction of the system of the subordination of shareholders’ credit in bankruptcy.The first chapter mainly introduces the connotation and characteristics of the subordination of shareholders’ credit in bankruptcy,and reviews and analyzes the status quo of shareholder’s claims in bankruptcy proceedings through case study.The second chapter analyzes the legitimacy of the subordination of shareholders’ credit in bankruptcy.Firstly,it analyzes the shortcomings of the independence of corporate personality and the limited liability of the shareholders.Then,it analyzes the defects of the disregard of corporate personality,and the disadvantages of bankruptcy nullity and insolvency system.Also points out that the construction of the system of the subordination of shareholders’ credit is also the requirements of the principle of good faith and prohibit the principle of abuse of rights.The third chapter mainly analyzes the foreign system of the subordination of shareholders’ credit in bankruptcy,including the United States of equitable subordination rule,doctrineof debt recharacterization and doctrineof equity substitution in Germany.Equitable subordination rule is main to prevent controlling shareholders obtain illegal interests through improper behavior,and can remedy damage to other creditors.Doctrineof debt recharacterizationmainly regulates the behavior of confusing loans and investment,helps to solve the problem of insufficient capital.Doctrineof equity substitutionemphasizes the different function of their own capital and external capital,if shareholders provide loans to a company when it in crisis,and then its loans play the nature of their own capital,and not be regarded as external capital.Based on the above analysis,the author divides shareholders claims into improper act claim and strategic loan,improper act claim is produced by the unfair behavior,mainly apply the principle of equitable subordination,strategic loan includes the form of fuzzy loans and instead of their own capital loans,the shareholder’s loan behavior itself hasn’t the nature of the loan,but a strategy of shifting risk.In the fourth chapter,on the basis of the previous analysis of the theory of the system of the subordination of shareholders’ credit in bankruptcy,we will discuss the construction of specific system in our country.In the framework of improper act claim and strategic loan,the author is considering the construction of specific system from the aspects of entity and procedure,and puts forward corresponding legal construction suggestions.