Research On Legal Issues Of Restructuring Of Micro,Small And Medium-Sized Enterprises

As a fundamental legal system of market economy,the bankruptcy legal system is of great importance to optimize resource allocation and stimulate market vitality.As the market economy becomes more complicated,especially due to the impact of the new epidemic,the business risks faced by small and medium-sized enterprises,which account for more than 90% of the market,have increased dramatically,and the need to reform the bankruptcy reorganization system is particularly urgent.The research and legislation on bankruptcy restructuring in China started late,and the legislative provisions on bankruptcy restructuring first appeared in the Enterprise Bankruptcy Law of the People’s Republic of China(hereinafter referred to as the "Enterprise Bankruptcy Law"),which was implemented in 2007.Compared with the Enterprise Bankruptcy Law of the People’s Republic of China(for trial implementation)promulgated in 1986,Chapter 8 of the Enterprise Bankruptcy Law specifically provides uniform provisions on the scope and duration of application of bankruptcy reorganization and the formulation and implementation of reorganization plans.Since then,the Supreme Court has promulgated and amended the judicial interpretation of the Enterprise Bankruptcy Law and documents related to the application of the Enterprise Bankruptcy Law to further regulate the division of common property in the reorganized enterprises,the period and conditions for the exercise of the right of retrieval,and the voting subjects of the draft reorganization plan,etc.In August 2016,in line with the requirements and purposes of promoting the supply-side structural reform,the The "National Information Network for Enterprise Bankruptcy Reorganization Cases" started to run online,and a new situation of bankruptcy reorganization trial was formed.This paper focuses on the efficiency of the reorganization process for MSMEs,with the aim of identifying rules that are more suitable for MSMEs to complete the reorganization process quickly.The purpose of this paper is to clarify the justification of the reorganization system for MSMEs,and to lay the foundation for the subsequent study.The purpose of this paper is to understand the development and evolution of the bankruptcy reorganization system in China by tracing its origins.The next part of the paper analyzes the legitimacy of reorganization for MSMEs,and proposes several contradictions,such as the speed and slowness of reorganization,the differences between MSMEs and large enterprises,and the superiority of reorganization over liquidation and settlement.After that,we compile the bankruptcy reorganization cases in recent years and sort out the problems in the application,timing,success rate and causes of the reorganization process for MSMEs.Starting from the aforementioned problems,we discuss the mainstream views on the improvement of the reorganization rules in China,analyze the advantages and disadvantages of establishing a special reorganization hearing system for MSMEs,and explore the general direction of the reorganization system in China.In addition,since the bankruptcy system is an imported product in China,foreign legislation on reorganization rules,including those for small-scale enterprises,is constantly being updated,and there is still room for improvement in the horizontal comparison of reorganization rules among countries.This paper intersperses the analysis of the United States’ Small,Medium,and Microenterprise Reorganization Act of 2019 with the argumentation process to address the reference problem of the value of the extraterritorial system involved in the next revision of the Enterprise Bankruptcy Law in China.The purpose of establishing a reorganization system for MSMEs within the framework of bankruptcy law is to quickly identify MSMEs with reorganization value,reduce the procedural costs and court resources of such enterprises,and achieve successful reorganization of MSMEs to the greatest extent and in the fastest time.In view of the differences between MSMEs and large enterprises,it is not enough to shorten the reorganization time and simplify the reorganization process to achieve rapid reorganization of MSMEs,but rather to provide a reasonable institutional core for rapid reorganization by designing special rules for such enterprises in addition to the procedural design.In terms of simplifying the restructuring rules,it is recommended to clarify the boundaries of fast restructuring for MSMEs,establish a special team for fast bankruptcy proceedings,shorten the legal time limit for restructuring,clarify the time for second consultation and voting by the voting group,and amend the Enterprise Bankruptcy Law and other higher laws and issue local regulatory documents as soon as possible to provide a legal basis for fast restructuring procedures for MSMEs from the top down.The basis for improving the efficiency of reorganization can be laid by changing the way of selecting administrators,changing the rules for mandatory approval of reorganization plans by courts,and introducing a pre-reorganization system.The paper is divided into three main parts: problem formulation,problem analysis and problem solving,which are logically connected through four chapters.The first part is to present the problem to be studied and to clarify the justification of the research content.This part mainly introduces the institutional background of bankruptcy reorganization hearings in China,proposes the problematic points of the research and the research methods and ideas,and explains the value of the selected topic of the article.First of all,since there is no provision for expedited reorganization in China’s Bankruptcy Law and related judicial interpretations,and the relevant opinions issued by the Supreme Court only provide for expedited proceedings for bankruptcy liquidation and bankruptcy settlement,there are no provisions for "expedited proceedings for bankruptcy/reorganization","simplified bankruptcy/reorganization",or "expedited bankruptcy/reorganization".In the relevant opinions issued by the Supreme Court,there are only provisions on expedited trial for bankruptcy/reorganization,summary bankruptcy/reorganization,and expedited bankruptcy/reorganization,which are only mentioned in the working methods of local courts,judicial practice and academic discussions in China.Therefore,it is necessary to define the concepts of "MSME" and "fast reorganization" first.In addition,it is necessary to analyze the legislative norms of the reorganization and fast reorganization system in China,as well as the connection between the upper and lower level norms and the related norms at the same level,in order to have an overview of the norms and identify the incompatibility and logical weaknesses of the norms.The second part uses empirical research method,literature analysis method,and comparative research method to analyze the bankruptcy restructuring of MSMEs.Firstly,the bankruptcy restructuring cases in China in recent years are extracted,and the cases involving restructuring trials in the bankruptcy restructuring information network are analyzed to sort out the percentage of restructuring involving MSMEs,and analyze the subjects of MSMEs’ restructuring applications,the general time limit of restructuring procedures and the adoption of restructuring plans.Secondly,we point out the differences between traditional large enterprises(especially listed companies)and MSMEs in applying bankruptcy restructuring procedures,analyze the essential features of traditional restructuring systems that are not applicable to MSMEs,and point out the limitations of applying traditional bankruptcy restructuring systems to MSMEs in China,taking into account the characteristics of traditional bankruptcy restructuring systems and the legal interests pursued.Meanwhile,from the perspective of balancing the advantages and disadvantages,we argue the necessity of reconstructing the reorganization system for MSMEs from the perspective of assessing the business environment,balancing the rights and interests of the parties,and the efficiency of court trials,and eliminate the concerns of introducing a fast reorganization system for MSMEs.In addition,we will analyze the foreign restructuring laws represented by the U.S.MSME Restructuring Act of 2019,and summarize their common logic and values,as well as their differences in order to adapt to the national conditions,and extract the rules of MSME restructuring that are applicable to Chinese characteristics.The third part is to provide a reference for the path of embedding the reorganization proceedings of Chinese MSMEs into the bankruptcy law system.It includes the macroscopic relationship between the institutional structure of the reorganization trial procedure itself in the law,judicial interpretation,and normative documents of the court,and the microscopic transformation of the substantive rules and procedural rules related to the reorganization trial.The former includes making principle provisions in bankruptcy law and civil procedure law,refining the rules of expedited reorganization in judicial interpretations,and then issuing specific rules by local courts based on central documents.The latter is mainly from the perspective of the efficiency value of fast restructuring itself and the supporting rules of restructuring,changing the criteria of mandatory court ruling,changing the way of administrator selection,recognizing the effect of pre-restructuring in the legislation,clarifying the scope of fast restructuring,setting up a special team for fast bankruptcy trial,shortening the legal time limit for restructuring,and clarifying the time of second consultation and voting of the voting group,so as to clear the roadblocks for the application of fast restructuring system.It also provides an outlook on the research after the bankruptcy restructuring rules for MSMEs.