Research On The Applicable Standard Of Substantive Consolidation Bankruptcy Legal System In China

The publication of "Proceedings of the National Court Bankruptcy Trial Work Conference" in2018 marked a phased victory of the substantive merger bankruptcy legal system in our country.On this basis,this paper firstly summarizes the current legislative situation and judicial cases of substantive consolidation in our country,and finds that there are some deficiencies in the current bankruptcy system of substantive consolidation in our country,such as the existing applicable standards are not uniform,and the existing laws lack relevant norms,etc.Secondly,through combing the substantive consolidation bankruptcy cases of the United States and Canada,the change of applicable standards of the substantive consolidation bankruptcy systems of the two countries is comparatively analyzed.Finally,on the basis of drawing lessons from overseas experience,it demonstrates each applicable standard item by item from two aspects: the main applicable standard and the additional applicable standard.This paper puts forward "high degree of confusion of legal personality","high cost of distinguishing property" and "fraud" as the main applicable standards,and under the condition of meeting the corresponding conditions,it can enter the substantive consolidation bankruptcy procedure due to one of the above single applicable standards;"Safeguarding the interests of creditors","increasing the likelihood of reorganization" and "reliance of creditors" are additional applicable criteria,i.e.if only one of the above stand-alone criteria is met,substantive consolidation of insolvency proceedings may not be adopted in this regard,but only as supplemental or ancillary considerations to the separately applicable criteria.