Research On The Legal System Of Substantive Consolidation Bankruptcy Of Affiliated Enterprises

In our country’s bankruptcy judicial practice,the exploration of substantive merger and bankruptcy of affiliated enterprises has been very rich.However,due to the lack of relevant legislation,there are differences in the specific application of substantive merger bankruptcy in judicial practice.Courts at all levels and localities apply a variety of measurement factors in individual cases,and have weighed factors such as personality confusion,cost differentiation,creditors’ fair compensation,and affiliated companies’ illegal operations.But whether these factors must be satisfied and whether they must be simultaneously Satisfaction and other issues are inconclusive;in terms of specific applicable procedures such as procedure initiation,review and ruling,and choice of bankruptcy type,courts at all levels and localities also have differentiated practices on whether judicial power is involved and the boundaries of involvement;after reorganization and reconciliation There are also different opinions in practice on the issue of the existence of affiliated enterprise members.At present,my country’s affiliated enterprise bankruptcy justice lacks uniformity and certainty,and its long-term development is not conducive to the good progress of judicial practice.Although there are deficiencies in the bankruptcy practice of substantive merger in my country,substantive merger is a bankruptcy method that focuses on the contradiction between the legal personality independence of affiliated enterprises and the close relationship at the economic level.It can improve bankruptcy efficiency,fairly protect the interests of all creditors,and make up for the existing Some legal personality denial systems,bankruptcy revocation rights and invalid behavior systems are insufficient in dealing with the bankruptcy of affiliated enterprises.It is necessary for our country to establish a substantive merger bankruptcy system in legislation to unify and guide judicial practice.The establishment of the legal system for the bankruptcy of the substantive merger of affiliated enterprises in my country needs to be systematically constructed from the perspectives of applicable principles,applicable standards and applicable procedures.The application of the substantive merger bankruptcy system in judicial practice needs to follow the principle of prudent application to avoid irreversible damage caused by the abuse of substantive merger bankruptcy.The court needs to comprehensively weigh the two types of standards,"the mixed standard of legal person personality with the difficulty of asset separation as the core" and "the protection of the interests of the overall creditor",and then prudently decide whether to apply the means of substantive merger.In the process of starting a case,the parallel approach of petitionism and authoritarianism is adopted,and the court is empowered to add the member enterprises that have not entered the bankruptcy procedure but should be substantially merged and bankrupt into the bankruptcy procedure and conduct substantive merger bankruptcy;When deciding whether to apply the means of substantive merger,the court shall exercise its judicial power to exercise discretion,and shall not be bound by the claims of the parties;on the choice of specific bankruptcy procedures,the court shall make a decision ex officio.After the substantial merger,reorganization and reconciliation,the existence of affiliated enterprise members should be independently determined by the enterprise according to the current market development status.