The Independent Path Of Substantive Consolidation Doctrine

The substantive consolidation doctrine is a system innovation of the bankruptcy law,but it has a cross-stratification relationship with the system of denial of corporate personality.This article argues that the substantive merger rule is an independent system that goes hand in hand with the deny of corporate personality and has a fundamental difference from the system of corporate personality denial in terms of system construction concept,scope of application,constitutional elements,nature of responsibility and duration.The most important of these is the independence of the constituent elements.This article argues that the substantive consolidation rules have independent elements: 1.The scale of enterprises and the elements of publicity;2.The elements of independence;3.The economic requirements.These three elements are presented in a progressive way.In meeting the above three elements should also be considered: 1.creditors trust the protection of interests;2.Prohibition of duplicate profit rules.This article is divided into five parts:The first part deals with the formulation of the case and the question,focusing on explaining the issue and clarifying the thinking.First of all,the substantive consolidation doctrine is not an independent rule in our country's legislation.It overlaps with the legal personality deny system.Second,there are many problems in the judicial practice of the substantive consolidation doctrine.It mainly includes the problems in practice such as inconsistent referee basis,unclear scope of application,unclear subject and applicable subject,etc.Third,the research and discussion on the independence of the merger rule in bankruptcy has unique value.The second part explains the unique institutional value of the substantive consolidation doctrine.First of all,we compared the institutional concept of the substantive consolidation doctrine and the concept of corporate personality disregard.Then we compared the nature of responsibility of the substantive consolidation doctrine and the corporate personality disregard.Third,we compared the duration of the substantive consolidation doctrine and the corporate personality.This section provides a comparative analysis of the three links and provides a preliminary explanation of the unique institutional value of the substantive merger rules.The third part constructs the theoretical basis for realizing the independence of the substantive consolidation doctrine.First of all,the author summarizes the disregard of corporate personality of substantive consolidation doctrine.Secondly,the author summarizes the relatively independent theory of substantive consolidation doctrine.Third,the author proposes an independent theory of substantive consolidation doctrine and explains it.The fourth part constructs the independent constituent elements of the substantive consolidation doctrine.The author believes that the independent constituent elements of the substantive consolidation doctrine are: 1.Necessity considerations;2.Independence requirements review;3.Review of economic requirements.At the same time,the author believes that "the harm of the interests of other creditors" and "fraud standards" cannot be regarded as the constituent elements of thesubstantive consolidation doctrine.The fifth part discusses the institutional path for the independent application of the substantive consolidation doctrine in China.The author starts from the two paths of legislation perfection and judicial perfection.The main path is the judicial interpretation,supplemented by the legislative approach,in order to use the smallest legislative resources and judicial resources to complete the largest system design.In terms of improving the legislation,the author believes that we only need to add a part of the content of Article 2 of the Bankruptcy Law.In terms of judicial perfection,the author will explain the constituent elements of the substantive consolidation doctrine and the principle of protective application and prohibition of duplication of profits within the existing legal framework so as to achieve the goal with the minimum judicial cost.