The Legal Issues Of The Bankruptcy Reorganization System Of Listed Companies Under The Coordination Mechanism Of The Government And The Court

Since the first bankruptcy law of the People's Republic of China came into effect in1988,China's bankruptcy law has gone through more than 30 years.The bankruptcy reorganization of enterprises is a collection of legal,economic and social and other fields complex problems.According to the incomplete law theory,a law cannot be accurately applied to all aspects of social life,especially in the field of bankruptcy reorganization.It is totally difficult to cope with the provisions of a law and the power of the court alone.Not to mention the restructuring of listed companies with a wide range of issues and complex interests.In this circumstance,the cooperation and participation of the government are necessary for the bankruptcy case to proceed smoothly.But at the same time,in the current reforming practice,excessive government intervention led to a series of unreasonable problems.For example,the listed company reorganization filing a case is difficult,mandatory approval of draft reorganization plan applies too much,the connection between the bankruptcy reorganization procedure and the material assets reorganization procedure is not well and something else problems.The root cause of these problems is the conflict between executive power and judicial power.The emergence of the coordination mechanism between the government and the court has guided the solution of this problem.Since 2016,the state council and the supreme people's court have issued multiple requests for local governments to establish a linkage mechanism between the government and the court on the handling of bankruptcy cases.However,how to build a normalized,rationalized and institutionalized coordination mechanism between the government and the court,so that it can truly guide and apply to the reorganization practice of listed companies,is still a question worth discussing.This paper aims to research the history,the laws,the regulations and the relevant cases of bankruptcy reorganization of listed companies and the relationship between the government and the court,to state the present our country bankruptcy reorganization of listed companies in the power of the executive power and judicial power distribution architecture,strive to point out the conflict,overlapping and other unreasonable place of them.And based on the perspective of constructing the coordination mechanism between the government and court,explore gradually improve the system of bankruptcy reorganization of listed companies the possibility of legal path.This paper will focus on the three most urgent problems in the reorganization of listed companies,including,the bankruptcy reorganization filing of listed companies,the bankruptcy reorganization of listed companies for compulsory approval,the bankruptcy reorganization of listed companies and the bankruptcy reorganization of listed companies and material assets reorganization procedures of the connection.Discussed by introducing government and court coordination mechanism at the higher level for the top-level design,perfect the system of internal coordination,clear the power boundary of the courts and government.In order to seek to eventually establish a normalized and institutionalized unified coordination mechanism to provides a feasible reference for the revision of the legal rules of the bankruptcy code in the future,even to ensure the bankruptcy restructuring of listed companies system healthy and steady development.This paper is divided into four chapters:The chapter one is an overview of the coordination mechanism between the government and the court and the bankruptcy reorganization of listed companies.Firstly,the concept of the coordination mechanism between the government and the court in the bankruptcy reorganization of listed companies is defined.Secondly,based on the historical evolution and the dialectical relationship between the government and the court,it is pointed out that in terms of promoting the success of bankruptcy reorganization cases,the government and the court are mutually supportive and indispensable.It also introduces that in other countries or regions,the evolution of power between the executive power and the judicial power in the bankruptcy reorganization in China,and points out that the interference of the executive power is gradually reduced and plays a role outside the bankruptcy process,which can be used for reference by our country.Finally,this chapter discusses the necessity and basic principles of the coordination between the government and the court in the bankruptcy reorganization of listed companies,and makes it clear that the framework system of the basic principles of the coordination between the government and the court should be established with the judicial power as the main body and the executive power as the auxiliary body.The second chapter introduces the conflict between administrative power and judicial power in the filing process of bankruptcy reorganization of listed companies,and discusses the possibility of optimizing the path through the coordination between the government and the courts.First of all,the bankruptcy reorganization of listed companies in China on the filing process is outlined,through the analysis of the current normative documents,state the actual filing process in the filing process;Secondly,it analyzes the problems existing in the filing process of the judicial restructuring of listed companies,including the lengthy pre-bankruptcy procedures,unreasonable intervention of administrative power to improve the difficulty of case acceptance,unclear government powers and responsibilities,and negative actions.Thirdly,the experience of Japan and the United States is introduced for reference.Finally,the paper discusses how to improve the starting procedure of bankruptcy reorganization of listed companies in China through the establishment of the coordination mechanism between the government and the courts.The chapter three discusses the compulsory approval procedure of the draft reorganization plan of listed companies.Firstly,it points out the institutional alienation caused by excessive government intervention in the application of the draft reorganization plan and analyzes the causes.Secondly,it clarifies the standard of mandatory approval of the draft reorganization plan of listed companies.Finally,combined with the coordination system between the government and the court,this chapter discusses how to keep the government onside and the court onside,and explores how to avoid the conflict between the government and the court by clarifying the standards and responsibilities,so as to smooth the communication channels between the two sides,and thus apply the compulsory approval system of reorganization plan in a more standardized way.Chapter four focuses on the coordination between the reorganization procedure of listed companies and the material assets reorganization procedure.Firstly,the consultation system and the " Sainty ship " case are taken as the introduction to introduce the current "consultation" system between the Supreme Court and the CSRC.Then detailed discussion on the current consultation system,points out its beneficial exploration on government coordination mechanism,and points out its deficiency and finally discusses how to in the current consultation system government and court coordination mechanism on the basis of the optimization improvement,such as explicit expert advice and draft reorganization plan issued by voting concrete operation specification,simplify the administrative examination and approval procedures in consultation with the mechanism,etc.,to make the system more operable,can truly be born,for more bankruptcy restructuring enterprises reduce unnecessary administrative block.