The theoretical basis of reorganization system involves two basic questions: First, why is it necessary to establish reorganization system? Second, why can the reorganization system achieve the purpose of its establishment? This is a question of necessity and possibility. Of course, the theoretical basis of the reorganization system is also of guiding significance to the construction and implementation of this system.
It should be pointed out that the establishment and early development of the reorganization system is not based on a certain established concept and design, but on actual needs and experience; It is the product of practice rather than theory. However, this does not prevent the reorganization system from gradually showing its rational spirit in its development process, nor does it prevent it from summarizing and expounding these inherent or due rational connotations; Although so far, the theoretical achievements of various countries in this regard are still rare. The theoretical basis of the reorganization system can be summarized into three topics, namely, the theory of operational value, the theory of interests and the theory of social policy. These three themes are interrelated. Among them, the management value theory is at the starting point both historically and logically. Modern enterprises can be understood in three senses. First of all, they are collections of property; Second, they are a collection of trading relationships; Third, they are a collection of interests. The significance of these three aspects is that enterprises constitute entities with various social and economic functions. Among these different meanings, the concept of collective property is the most basic. Because resources (or capital, assets) are the material premise of transactions and interests, and also the realistic basis of corporate qualifications. The initial theoretical basis of reorganization system is based on "operational value". The so-called business value is the property value of an enterprise as an entity of business value, or the value of an enterprise in a state of going concern. In many cases, the operating value of an enterprise is higher than its liquidation value, that is, it is higher than the value recovery of its net assets through liquidation. As pointed out in the report of the 95th Congress Bankruptcy Law Revision Committee 1977, "The premise of enterprise reorganization is that the value of the assets used in the industrial production designed by it is much higher than the value when the same assets are divided and sold." "Reorganization is more efficient economically than liquidation, because it maintains the employment and assets of enterprises." Practice has also proved that "generally speaking, liquidation in Chapter VII is not the best choice when enterprises have actual assets or can generate actual profits from future operations. Even if the liquidation procedure is indeed the only last choice, most enterprises with considerable scale will get more benefits through slow and orderly debt settlement under the management of debtors or creditors' committees through Chapter 1 1 than through rapid liquidation in Chapter 7. Those who are interested in enterprises generally have a better understanding of the assets to be sold and are more willing to improve the value recovery rate through the 1 1 chapter. " "Moreover, in the case of continuous operation, the asset value of the enterprise is much higher than the income brought by rapid price changes. In addition, intangible benefits, such as goodwill, sustainable tax relief, key personnel and profit contracts to be performed, will be lost through compulsory liquidation according to Chapter 7, and these intangible benefits can be retained through reorganization, which is beneficial to both debtors and creditors. "
The operating value of enterprise assets is higher than liquidation value's theory, and there is another important reason, that is, in most cases, enterprises are bankrupt because they are unable to pay off their debts due, not because of asset depreciation, but because of financial difficulties. This financial difficulty may be attributed to business mistakes, market changes (such as soaring prices of raw materials and slow sales of products due to economic depression) or other unexpected external factors (such as austerity policies of domestic governments and trade sanctions of foreign governments). This means that bankrupt enterprises may still be profitable capital entities under operating conditions. Recognizing the necessity of maintaining the business value of enterprises only provides an economically reasonable goal. In the case that the bankruptcy liquidation system must be preserved by law for various reasons, to achieve this reasonable goal, we must adopt a property right arrangement that can encourage the parties, especially creditors, to voluntarily choose to exercise their rights in a way that preserves the business value of the enterprise. In other words, if the preserved business value only belongs to the debtor and cannot benefit the creditor, or the creditor's liquidation interests can only be pinned on the liquidation value of enterprise assets, then there is no doubt that the creditor would rather choose liquidation distribution. Therefore, the legal system needs to make arrangements to make creditors the first beneficiaries of preserving the business value of enterprises. This means that the law should make the creditor become the de facto owner of the restructured enterprise, thus establishing a relationship between the creditor and the debtor and the debtor's investors and making them devote themselves to the process of saving the enterprise.
Regarding the relationship between the interests of creditors and debtors and * * *, a man named Peter Gogan once told an interesting story at a congressional hearing: "A Pennsylvania boy was commended by a small town because he jumped into the water and rescued his companion Hans, who accidentally slipped on thin ice and fell into the water. When the mayor enthusiastically praised the boy's extraordinary bravery, the boy said bluntly,' I don't understand what you mean by being brave. I have to save Hans. He is wearing the brand-name skates I just bought. Here, Gogan wants to describe the creditor as "a person who has to save the debtor in order to save his own loan". At the same time, he also believes that, on the other hand, it is not unreasonable to regard the rescuer as a debtor, because the debtor must also "avoid creditors from suffering too much losses to protect their own survival." This is perhaps the simplest way to explain the theory of interest and * * *.
Some scholars have made a more accurate explanation of the theory of interest and * * *. For example, in the United States, Douglas, Baird, thomas jackson and robert scott all believe that corporate bankruptcy in general and Chapter 1 1 in special sense should be devoted to protecting the wealth of those who invest in debtors to the maximum extent. Beyond the concept of bankruptcy, the law interprets these people as people who have rights to the debtor's assets, and interprets this order as the order in which these claimants can be satisfied. Secured creditors are paid first, then unsecured creditors, and finally shareholders. When the company goes bankrupt, the creditor is actually the owner of the company. All the above scholars hold that the bankruptcy procedure should serve the collective interests of the debtor owner. The basis of the creditor's right to control the bankrupt debtor's property can be explained by the general debt guarantee theory in civil law. The so-called general guarantee of debt means that the law guarantees the performance of debt with all the property of the debtor. The preservation system (subrogation right, cancellation right), enforcement system and bankruptcy liquidation system in civil law system all have the same premise: when the debtor fails to perform his debts, the creditor can exercise his rights over the debtor's property in the way or procedure prescribed by law; During this period, the debtor's right to control the property is in a state of cessation. Only when the creditor's rights are satisfied can the debtor exercise the right to control the remaining property. If the debtor's property is not enough to pay off the debt, the debtor will lose all the property (at this time, if the debtor is an enterprise, the enterprise will be destroyed because it has lost the necessary property base).
In bankruptcy proceedings, the law puts the debtor's property under the control of the administrator or liquidator to achieve the purpose of fair liquidation. The administrator manages, disposes of and distributes the property according to the collective will of the creditors-the resolution of the creditors' meeting or the instructions of the supervisor. In essence, the property at this time belongs to all creditors, or its ultimate ownership generally belongs to creditors.
Obviously, in bankruptcy proceedings, the interests of creditors exclude the interests of debtors (and their investors). In other words, the creditor and the debtor are both sides with opposing interests and conflicts. In this case, in order to protect the creditor's rights, the law has to deprive the debtor of his real interests and his future interests, that is, deprive him of everything he can get by using his existing property and reputation. Bankrupts actually have nothing. This is a cold ending for debtors who are honestly operating and unfortunately in financial difficulties. Moreover, it not only means the sacrifice of the debtor, but also means the waste of social resources, because both the individual talents of the operators and the asset portfolio and intangible assets of enterprises are social resources. As a minimum system relief, modern bankruptcy law has established an exemption system, giving honest and unfortunate bankrupt natural persons a chance to start over. However, the exemption system cannot give those honest and unfortunate bankrupt enterprises a chance to "start over".
Of course, there is a more active institutional remedy-reconciliation. According to the reconciliation procedure, the parties can reach a compromise on repayment methods such as debt extension and debt relief through consultation, which may prevent the debtor from going bankrupt. However, the settlement is conditional on the voluntary tolerance of creditors. In practice, there may be many factors that make this condition impossible, for example, the secured creditor is satisfied with the immediate disposal of collateral, the creditor is in urgent need of cash, the creditor lacks confidence in the debtor's future solvency, and so on. It is impossible to take the interests of the debtor or social interests as the motivation of creditors. Theoretically, if the settlement scheme can't bring more benefits to creditors than the liquidation distribution, creditors will not make voluntary tolerance. This kind of income generally means that the debt settlement exceeds the liquidation distribution; In addition, the extent of this excess should be enough to offset the risks and losses borne by creditors due to delayed payment. In addition, the risk of property depreciation caused by inflation, economic depression and market fluctuation, as well as the lack of credit caused by the debtor's own reasons or institutional reasons, are often the factors that lead creditors to refuse to accept the settlement plan.
From the point of view of real right arrangement, when the bankruptcy procedure ends after the settlement is established, the constraints of the bankruptcy procedure on the debtor's property will be lifted, the creditor's control over the debtor's property obtained in accordance with the bankruptcy procedure will also end, and the debtor will resume control over its property. In this way, because the property entrusted by the creditor according to the settlement agreement is in the hands of the debtor, the creditor's liquidation interests are in a certain "mercy" position. This is also one reason why many creditors have doubts about the settlement.
Thus, the traditional "either-or" bankruptcy-that is, "either led by creditors or led by debtors"-can not eliminate the interest opposition and conflict between creditors and debtors in bankruptcy events, and the opportunities and hopes for the revival of troubled enterprises are often missed in this opposition and conflict, leading to the tragic ending of enterprise bankruptcy.
In fact, the reorganization system is a kind of "dual property right" design for the debtor's property right arrangement. Specifically, on the premise of recognizing the existing property rights status of the debtor and its investors, it gives the creditor the legal status of the property dominator. In this case of dual property rights, the actual control of the property is entrusted to a neutral-the court or the administrator appointed by the court. During the period of reorganization, the debtor may continue to possess the property and business, or another person designated by the court may take over the property and business; In the process of making the reorganization plan, both the creditor and the debtor (and the debtor's investor) have the right to speak; In addition to creditors, shareholders sometimes have the right to vote on the reorganization plan, or at least have the right to express their opinions on the approval of the reorganization plan. In short, the reorganization procedure is a multi-party consultation mechanism, and the contents of the consultation decision include not only the debt settlement plan, but also the enterprise revitalization plan. All this is based on the fact that both creditors and debtors have property rights.
So, what is the theoretical basis of dual property rights? Property rights come from investment. To recognize the creditor's property right status, we must first recognize the creditor's capital contribution status.
Investment is the behavior that one property owner transfers his property to another property owner and gets a return in the future. Investors' right to claim income arising from investment behavior can take two forms: one is fixed income, that is, there is a certain repayment amount, usually with a certain payment period; The other is floating return, that is, the return linked to the economic benefits of the enterprise. There is no fixed repayment amount, but there is a certain profit sharing ratio or sharing rules. The former is the way of creditor's rights, and the latter is the way of equity. In the order of payment, the former has priority.
Because the return payment of creditor's rights is fixed and takes precedence over the return payment of equity, relatively speaking, the shareholders in uncertain and inferior position are more concerned about the interests of enterprises. No matter from the perspective of interest balance or the motivation of pursuing the maximization of enterprise interests, we should arrange the priority of equity in the decision-making of internal affairs of enterprises. In addition, there is another important reason, that is, the creditor's rights will be eliminated after the return is paid in one lump sum or in installments, so the life cycle of creditor's rights is short and the liquidity is large, which is just the opposite of the long-term existence of equity. Therefore, it is difficult to operate in practice even if it is advocated that creditors enjoy internal power status under the normal operation of enterprises.
Creditors and shareholders put their own economic resources into the operation of the enterprise, so as to obtain their expected returns; Their interests are related to the rise and fall of enterprises. In this sense, they are interests and * * *, but from the perspective of distribution, they are opposites and conflicts of interests. There is inevitably a distribution conflict within any interest subject; There are no exceptions among shareholders, partners or multiple creditors of the same debtor.
It can be seen that in the case of financial difficulties of enterprises, if the liquidation procedure of property and creditor's rights is designed as a simple interest distribution mechanism, it will inevitably lead to the conflict of interests between creditors and debtors, as well as between creditors, that is, everyone wants to safeguard their own interests at the expense of others. At this time, the enterprise is like a sick horse. Because its owner lost the same interests, it faced the fate of being slaughtered and divided. Obviously, in order to save this sick horse, it is imperative to calm down these owners who are clamoring for "killing the horse and sharing the meat" and think more about their interests; If everyone Qi Xin works together to cure it, then everyone will get greater benefits; According to the operational value theory discussed earlier, the value of "horse meat" (realized value) is less than that of "live horse" (operational value), the value loss caused by "killing horse" is everyone's loss, and the value saved by "saving horse" is everyone's gain. The motivation for the establishment and development of the reorganization system comes not only from the individual rational judgment of the parties based on their personal interests, but also from the overall rational judgment of the society based on the overall interests. This overall judgment is called social policy. Its rational standard is the value of efficiency and fairness.
The establishment of reorganization system means "reforming the reverse production system centered on bankruptcy so far". The emergence of this legal reform is largely due to the inherent defects of traditional bankruptcy centralism. The biggest defect of traditional bankruptcy centralism is the loss of asset value, unemployment relief, chain bankruptcy and other social costs, which leads to the waste of social resources. As mentioned above, the operating value of a modern enterprise includes the combined cost, intangible assets and income, which is beyond the reach of small workshops and shops in the old days. Moreover, the complexity and cost consumption of a modern enterprise bankruptcy liquidation are far from what the past personal bankruptcy can match. The key point of establishing reorganization system is not limited to the debtor's "restart", but the protection and effective utilization of resources in the whole society.
The second major defect of traditional bankruptcy centralism is that it has caused widespread "bankruptcy fear" and led to the accumulation of social debts. The serious economic consequences, social consequences and high operating costs of enterprise bankruptcy not only make debtors feel scared, but also make creditors flinch. This situation is particularly obvious in countries with underdeveloped economy and imperfect social security system. Today, whether in China, Russian or Eastern European countries, from creditors and debtors to governments and workers, there is widespread fear and even aversion to bankruptcy. Therefore, the proportion of enterprise bankruptcy cases in the existing insolvency events in society is extremely low. In China, this situation has led to two remarkable results. First, the "first-come, first-served" litigation war and execution war, that is, creditors evade bankruptcy procedures and use civil litigation and execution procedures to seek personal repayment, thus contributing to the spread of local protectionism and judicial conflicts between regions, making local courts a helper and umbrella for local enterprises to collect debts. The second is the phenomenon of "no debt, no repayment". On the one hand, due to the high cost and poor effect of debt collection, coupled with institutional factors such as government intervention, major creditors such as banks and raw materials and equipment suppliers are at a loss in the face of increasing creditor records (including more and more bad debts). On the other hand, more and more debtors feel at ease because of the psychology of "reasonable debt and favorable default". It is reported that as of July 1995, the national "triangular debt", that is, the accumulated debts owed by enterprises to each other, has exceeded one trillion yuan.
Debt accumulation, that is, a large number of debts due in society can not be paid off and accumulate more and more, is a socio-economic pathological state. The negative effect of debt accumulation is not only the increase of debt quantity, but also the decrease of creditor's rights and interests. It leads to the increase of transaction risk and cost, the decrease of social and economic efficiency, and weakens or even disappears the ability of society to digest accumulated debts through interest growth. Debt accumulation erodes the vitality of enterprises and the credit base of economic circulation, devouring bank funds and treasury income. If it is not treated in time, it will inevitably bring disastrous consequences to the national economy. A comprehensive approach should be taken to debt accumulation. From the legal point of view, the management of debt accumulation should start from two aspects: managing the trading environment and saving enterprises. On the one hand, it is necessary to improve the contract law, civil execution, bankruptcy liquidation and other systems, and increase the intensity of urging debt performance and compulsory debt repayment. On the other hand, it is necessary to improve enterprise legislation, establish a reorganization system, realize the recovery and reconstruction of enterprises, and fundamentally eliminate the causes of debt accumulation. There are three different legislative policies on enterprise reorganization.
The first is laissez-faire, that is, the fate of the enterprise depends entirely on the agreement between the parties, and the reconciliation system pursues this policy. Therefore, if the debtor does not propose a settlement plan, or a plan that satisfies the creditors, if the creditors do not accept the settlement, or not enough creditors accept the settlement, then the enterprise will have to close down and liquidate.
The second is arranged by the government, that is, the enterprise reconstruction is completely arranged by the government. Its representative is Chapter IV of China 1986 Enterprise Bankruptcy Law (Trial). Article 20 clearly stipulates that "the reorganization of an enterprise shall be presided over by its superior competent department", and stipulates that "the reorganization plan of an enterprise shall be discussed by the workers' congress" and "the reorganization of an enterprise shall be reported to the creditors' meeting regularly". Here, first, the creditors have neither the right to speak nor the right to decide the enterprise reorganization plan except being told about the enterprise reorganization; Second, the operators of enterprises are completely excluded from the rectification process; Third, employees only have the right to know and make suggestions, but not the right to make decisions; Fourth, the people's courts are completely indifferent to the rectification of enterprises. It can be seen that the enterprise reorganization plan is completely formulated, decided and implemented by the competent government departments. In this way, there are two important consequences: first, creditors do not trust the rectification of enterprises, so it is difficult to reach a settlement agreement with creditors beforehand; According to the provisions of this law, if a settlement agreement cannot be reached, rectification cannot be carried out. Second, this rectification procedure not only gives the competent department the power to preside over rectification, but also makes it bear the burden of rectification (including financial burden) and the risk of rectification failure. Therefore, the competent departments of enterprises generally lack the enthusiasm of "presiding" rectification. Practice has proved that this arranged rectification procedure of separating government from enterprises is not feasible.
The third is interventionism. The so-called intervention, the premise is to recognize the free will of the parties and encourage the parties to negotiate and compromise, which is different from arranged doctrine. The difference between laissez-faire and laissez-faire is that the legal system has made some necessary and appropriate restrictions on the free will of the parties; All these restrictions revolve around one goal, which is to promote the success of restructuring and the revival of enterprises. For example, in the United States, "reorganization under the auspices of bankruptcy court is the wisest financial choice", and some principles have emerged. First of all, in order to maintain the status quo, it is necessary to stop the normal' diligent competition' between creditors in order to obtain payment from debtors or exercise the right to dispose of collateral on creditors' property. Only when there is a reasonable opportunity to determine the fairest and most beneficial adjustment for all parties can a ruling be made on reorganization and reorganization form. In order to preserve the debtor's business as an operating entity and reorganize the rights of all interested parties, the court usually needs to exercise certain powers to maintain the economic life of the debtor's enterprise. The bankruptcy court is granted these powers by law, including: 1. Prevent secured creditors, tax authorities, real estate owners and others from seizing property or canceling contracts in favor of debtors; 3. Allowing the debtor to borrow money and setting mortgage guarantee with the debtor's property is equal to or prior to the existing creditor's loan mortgage right; 3. Approve the capital structure adjustment measures proposed by the debtor in the restructuring plan, including extension, deferred repayment right, debt relief (reconciliation), debt-to-equity swap, and other similar financial adjustments that may be needed for the debtor to resume business in a stable and profitable state; 4. After the relevant facts are fully exposed and the creditors express substantive opinions on the final plan submitted for judicial approval, make those creditors who disagree obey the reorganization plan acceptable to and beneficial to most creditors. "