Research On The Legal Regulation Of The Pre-Reorganization System Of Bankruptcy Of Enterprises In China

In recent years,with the global economic crisis and the repeated impact of COVID-19,many enterprises in China have suffered from unprecedented development difficulties,and the traditional out-of-court restructuring and in-court reorganization can no longer meet the needs of corporate rescue,so it is urgent to build a diversified rescue mechanism for troubled enterprises.From the Supreme Court’s "Opinions on Providing Judicial Guarantees for Improving Business Environment" issued in 2017,which mentions exploring the mechanism of bridging out-of-court reorganization and in-court restructuring,to local authorities’ active formulation of operational guidelines for practice,to the latest amendment of China’s Enterprise Bankruptcy Law,which mentions adding pre-reorganization system,the necessity of constructing a pre-reorganization system in China is obvious.However,due to the slow development of bankruptcy law in China and the late study of pre-reorganization,there are many problems in the theory and practice of the pre-reorganization system.In this paper,we study the pre-reorganization system through case studies and other methods.Firstly,this paper defines the concept of pre-reorganization in China from the basic theory of pre-reorganization,analyzes the nature of pre-reorganization according to the concept and legal status of pre-reorganization,and concludes that pre-reorganization has both private and judicial properties.By comparing it with traditional out-of-court restructuring and in-court restructuring,it highlights the advantages of pre-reorganization,such as solving the "clamping" problem,having a high binding agreement,respecting autonomy,improving efficiency and reducing costs,and protecting the control of troubled enterprises.This paper analyzes eight national-level documents,74 local operational guidelines,and some typical cases,and concludes that there is a lack of unified legislation,a controversial pre-reorganization model,unclear responsibilities of main participants,imperfect pre-reorganization information disclosure mechanism,and difficulties in extending the validity of pre-reorganization agreements in the practice of pre-reorganization in China.The six major problems are lack of uniform legislation,controversial pre-reorganization model,unclear responsibilities of main participants,imperfect pre-reorganization information disclosure mechanism,difficulty in extending the validity of the pre-reorganization agreement,and irregular judicial protection mechanism for debtors’ property.Again,as an imported system,the analysis of the core elements of the pre-reorganization system in other countries can provide a reference for solving the practical difficulties in China.Finally,based on the above six major practical problems,it is imperative to construct a unified pre-reorganization legislation in China.In terms of specific legal regulation,it is necessary to clarify the pre-reorganization model,improve the responsibilities of pre-reorganization participants,clarify the manner and conditions of starting pre-reorganization,optimize the information disclosure mechanism of pre-reorganization during the whole period,strive to strengthen the effect of the pre-reorganization agreement to the in-court reorganization,and regulate the judicial protection mechanism of debtor’s property in the pre-reorganization process.