| The background of economic globalization and the vigorous development of market economy at home and abroad has bred many affiliated enterprises engaged in business activities in the form of enterprise groups to better cope with the severe domestic and international competition situation.However,under the background of the continuous and complex global COVID-19 situation and the domestic supply side structural reform of "reducing production capacity and adjusting structure",some affiliated enterprises have entered bankruptcy proceedings one after another.There are more and more bankruptcy cases of affiliated enterprises in judicial practice The substantive merger system is a new system to solve the bankruptcy problem of affiliated enterprises,which originated from the case law of the United States bankruptcy law.However,in China,the Minutes of the National Court’s Bankruptcy Trial Conference issued by the Supreme People’s Court in2018 provides the substantive merger bankruptcy system of affiliated enterprises for the first time,but it cannot be used as the basis for the judge’s decision.In this paper,72 cases from 2018 to 2022 are taken as samples to study the adjudication criteria of substantive merger bankruptcy of affiliated enterprises.At the same time,it explains the relevant standards outside the region,such as the standard of controlling contract constraint between related enterprises in Germany;America’s "another self",fraud,creditors trust interests,and creditors’ benefits;Japan’s four-element standard and the United Nations Commission on International Trade Law’s standard of fraud and high asset-liability confusion and even high cost of differentiation.Finally,based on the current situation of the adjudication standards of substantial merger bankruptcy of related enterprises in China,this paper draws on the relevant adjudication standards from other countries and puts forward some suggestions.First,the macro level includes the principles of clarity,the principle of balance of benefits,and the formulation of a clear comprehensive ruling standard;second,the micro level includes fraud and high mixing in the personality of the legal person that can be applied independently,as well as the income of creditors,the interest of the creditor’s trust,the improvement of the enterprise’s emphasis on the enterprise Others such as the possibility of the possibility to help the auxiliary ruling of the interests of each subject. |
