Although the court can improve the software and hardware conditions for hearing cases within the legal framework and smooth the legal exit channels for enterprises, such as issuing judicial explanations to clarify the acceptance conditions of bankruptcy cases, strengthening the supervision of bankruptcy cases, expanding the professional team of judges and bankruptcy administrators, opening a network information platform for bankruptcy cases, and trying to set up bankruptcy courts. The neutrality of the court determines that it is impossible for it to voluntarily complete various quantitative political task indicators according to government instructions like administrative organs. Both the compulsory liquidation procedure stipulated in the Company Law and the bankruptcy liquidation, reorganization and reconciliation procedure stipulated in the Enterprise Bankruptcy Law are legal procedures initiated by qualified applicants. China courts have no power to initiate the exit mechanism to require zombie enterprises to withdraw from the market. Even if the enforcement court of a lawsuit intends to turn the enforcement procedure into bankruptcy procedure according to Article 5 13 of the Judicial Interpretation of the Civil Procedure Law, it needs the consent of at least one creditor or debtor himself.
Second, eligible applicants apply for bankruptcy of "zombie enterprises", and shareholders are unwilling to carry out liquidation.
Qualified applicants for bankruptcy proceedings refer to creditors or debtors ("zombie enterprises") and investors who meet the requirements of the enterprise bankruptcy law; The main body of the company liquidation procedure refers to the creditors and shareholders who meet the requirements of the company law. All the above subjects have specific reasons why they are unwilling to start the enterprise exit mechanism.
1, creditors expect to minimize losses and are unwilling to "zombie enterprises" withdraw from the market.
If an enterprise enters the bankruptcy procedure, its creditor's rights and interests, whether secured creditors or ordinary creditors, will be obviously damaged by the special provisions of the enterprise bankruptcy law. For example, the interest on creditor's rights will stop from the date of accepting the bankruptcy case, and the personal repayment within half a year from the date of accepting the bankruptcy case will be revoked. The debtor's property preserved in the lawsuit will be included in the bankruptcy property after the preservation is lifted and enjoyed by other creditors. More importantly, the proportion of creditor's rights paid off in the bankruptcy liquidation procedure. Creditors often hope that their claims can be fully recovered, or at least the principal can be recovered to minimize economic losses, so they generally hope that "zombie enterprises" can survive. Even if the "zombie enterprise" is half dead and has been in arrears, it is not willing to stand up first and put the last straw on "filing for bankruptcy".
2. Shareholders don't want to start the enterprise exit mechanism, and the recovered investment is not in place.
Article 22 of Judicial Interpretation II of Company Law stipulates that when the company is dissolved, the unpaid capital contribution of shareholders shall be regarded as liquidation property. The unpaid capital contribution of shareholders includes the overdue capital contribution, as well as the capital contribution that is not due by stages as stipulated in Articles 26 and 81 of the Company Law. Article 35 of the Enterprise Bankruptcy Law stipulates that after the people's court accepts the bankruptcy application, if the debtor's investors fail to fully fulfill their capital contribution obligations, the administrator shall require the investors to pay the subscribed capital contribution, which is not limited by the capital contribution period. Many enterprises in our country are not standardized in capital contribution. In the current company law, it is arbitrary to allow companies to be established without capital verification. It is not uncommon for shareholders to subscribe for a high amount of capital contribution and the paid-in capital contribution is not in place for a long time. Therefore, for "zombie enterprises" with high debts, shareholders generally don't take the initiative to start liquidation or bankruptcy procedures in order to avoid large paid-in capital contributions.
3. Controlling shareholders and senior management are attached to the control and status of the enterprise and will not actively cooperate with the liquidation of the enterprise.
Once the "zombie enterprise" is shut down, transferred or reorganized, the direct result is that the controlling shareholder loses control, the senior management position is deprived, and all the original rights and preferential treatment will be lost immediately. Under the influence of this resistance, its controlling shareholder or senior management will naturally not actively cooperate with the start of the enterprise exit procedure. In a series of liquidation bankruptcy cases handled by the author, it is often seen that the actual controller or senior executives are not adapted to the role change, and even set up many obstacles in liquidation, which seriously hinders the liquidation process.
Third, it takes a long time for "zombie enterprises" to obtain "death certificates"
According to the statistics of the State Administration for Industry and Commerce, the national average number of newly registered enterprises in 20 10000 was10000 in 20 15, while the average number of enterprises cancelled in 20 15 was less than a fraction of the number of newly registered enterprises. The main reason for this phenomenon is that the cancellation of enterprises is much more complicated than the establishment. Because according to the relevant provisions of the Company Law, a company must go through liquidation procedures before cancellation, even if it is self-liquidation, it is normal to take half a year or even several years according to the actual situation of the enterprise, not to mention bankruptcy liquidation procedures that require the intervention of the court, bankruptcy administrator and even the government.
Fourth, it is difficult to find new investors in bankruptcy reorganization.
Strictly speaking, bankruptcy reorganization does not belong to the exit mechanism of market participants, but a protection mechanism for troubled enterprises, which is helpful to maintain social stability and effective use of social resources. When a "zombie enterprise" applies for bankruptcy reorganization, it is generally funded by the same industry or upstream and downstream enterprises, taking into account factors such as resource matching, employee placement and management experience.