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Corporate Reorganization Reform in China: Findings from an Empirical Study in Zhejiang

  • Zinian ZHANG (a1) and Roman TOMASIC (a2)
Abstract

In 2006, China enacted its first rescue-oriented Enterprise Bankruptcy Law with the aim of establishing its corporate rescue culture. But the corporate reorganization procedure that is at the heart of the new bankruptcy law has not been used frequently. It is appropriate to ask why the use of China’s new corporate rescue law has been so low. Meanwhile, in the existing corporate reorganizations under the 2006 Law, most debtors were excluded from the reorganization process, so that the Chinese new debtor-in-possession model, which seems to be a desirable control format, was largely shelved. Why so? This article explores these two issues through the use of empirical data collected from Zhejiang, a province with a significantly larger number of reorganizations than most other Chinese provinces.

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Footnotes
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*

Lecturer at School of Law, University of Leeds, England; previously Research Fellow at the Centre for Cross-Border Commercial Law in Asia, School of Law, Singapore Management University, Singapore.

**

Professor of Law, School of Law, University of South Australia, GPO Box 2471, Adelaide, 5001, Australia, and Visiting Professor of Company Law, Durham Law School.

Footnotes
References
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1. Earlier versions of this article were presented at the East Asian Law & Society Conference (Shanghai, Shanghai Jiaotong University, 22 March 2013) and the 6th Insolvency Research Conference (London, The Insolvency Service and University College London (UCL), 19 April 2012).

TOMASIC, Roman and ZHANG, Zinian, “From Global Convergence in China’s Enterprise Bankruptcy Law 2006 to Divergence in Implementation: The Case of Corporate Reorganizations in China” (2012) 12 Journal of Corporate Law Studies 295 (noting that reorganization is only used for a small number of large companies in China).

2. Zhang has found that the debtor-in-possession model was only used in twenty-six percent of reported Chinese reorganizations; see further: ZHANG, Zinian, Corporate Reorganization Under the Enterprise Bankruptcy Law of the People’s Republic of China – The Relevance of Anglo-American Models for China (PhD Thesis, Durham University, 2014) at 131 .

3. Ibid at 115.

4. See PARRY, Rebecca and ZHANG, Haizheng, “China’s New Corporate Rescue Laws: Perspectives and Principles” (2008) 8 Journal of Corporate Law Studies 113 .

5. WANG, Shihu, “Woguo Gongsi Chongzheng Zhidu De Jiantao Yu Jianyi (我国公司重整制度的检讨与建议) [An Examination of China’s Corporate Reorganization Regime]” (2006) 28 Xiandai Faxue (现代法学) [Modern Legal Science] 131 at 132 (noting that there was no modern corporate rescue regime in the EBL 1986).

6. Ibid at 133 (noting that the EBL 1986 had never been used to rescue troubled SOEs). See also WANG, Weiguo, “Adopting Corporate Rescue Regimes in China, A Comparative Survey” (1998) 9 Australian Journal of Corporate Law 234 at 238 (noting that the oversimplified rescue regime in the EBL 1986 was not used at all).

7. See BOOTH, Charles D, “The 2006 PRC Enterprise Bankruptcy Law: The Wait Is Finally Over” (2008) 20 Singapore Academy of Law Journal 275 at 300 .

8. See RAPISARDI, John J and ZHAO, Binghao, “A Legal Analysis and Practical Application of the PRC Enterprise Bankruptcy Law” (2010) 11 Business Law International 49 at 50 .

9. ZOU, Hailin, “Woguo Qiye Zaisheng Chenxu De Zhidu Fenxi He Yinyun (我国企业再生程序的制度分析和适用) [China’s Corporate Rehabilitation System – Theories and Application]” (2007) 25 Zhongguo Zhengfa Daxue Xuebao (中国政法大学学报) [Journal of China University of Political Science and Law] 48 at 50-51.

10. Ibid at 54 (arguing that the reason for allowing shareholders to file for reorganization is to protect minority shareholders).

11. See QI, Shujie, “Woguo Xing Pochanfa Zhi Chongzhen Zhidu Ruogan Shupin (我国新破产法之重整制度若干述评) [Corporate Reorganization Under the New Corporate Bankruptcy Law]” (2007) 1 Fujian Faxue (福建法学) [Fujian Journal of Legal Science] 37 at 38 .

12. WANG, Liming, “Pochan Lifa Zhong De Ruogan Yinan Wengti Tantao (破产立法中的若干疑难问题探讨) [Problems of Amending the Bankruptcy Law]” (2005) 3 Faxue (法学) [Legal Science] 3 at 11 [Wang, “Amending the Bankruptcy Law”].

13. WANG, Xinxin, “Xing Pochanfa Lifa Zongheng Tan (新破产立法纵横谈) [The New Bankruptcy Law]” (2005) 4 Shoudu Shifan Daxue Xuebao (首都师范大学学报) [Journal of Capital Normal University (Social Sciences Edition)] 34 at 40 [Wang, “The New Law”].

14. See Booth, supra note 7 at 303.

15. See WANG, Xinxin, “Shilun Chongzhen Zhidu Zhi Lifa Wangshan (试论重整制度之立法完善) [Improving the Corporate Reorganization Regime]” (2010) 10 Kunming Ligong Daxue Xuebao (昆明理工大学学报) [Journal of Kunming University of Science and Technology] 28 at 30 .

16. See WANG, Xinxin, “Practices of the Enterprise Bankruptcy Law 2006” (2009) 3 Journal of Law Application 7 at 14 .

17. See Wang, “Amending the Bankruptcy Law”, supra note 12 at 11.

18. Zhonghua Renming Gongheguo Qiye Pochanfa (中华人民共和国企业破产法) [The People’s Republic of China Enterprise Bankruptcy Law] (2006), art 86 [EBL 2006].

19. Ibid, art 87.

20. Ibid, art 89.

21. Both are understood as originating in the US. See generally TABB, Charles Jordan, “The History of the Bankruptcy Laws in the United States” (1995) 3 America Bankruptcy Institute Law Review 5 .

22. TENE, Omer, “Revisiting the Creditors’ Bargain: The Entitlement to the Going-Concern Surplus in Corporate Bankruptcy Reorganizations” (2003) 19 Bankruptcy Developments Journal 287 at 295 .

23. See generally LOPUCKI, Lynn M, “The Nature of the Bankrupt Firm: A Response to Baird and Rasmussen’s The End of Bankruptcy ” (2003) 56 Stanford Law Review 645 .

24. See generally BAIRD, Douglas G and RASMUSSEN, Robert K, “The End of Bankruptcy” (2002) 55 Stanford Law Review 751 .

25. BAIRD, Douglas G, “Bankruptcy’s Uncontested Axioms” (1998) 108 Yale Law Journal 573 at 580 .

26. KAHL, Matthias, “Economic Distress, Financial Distress, and Dynamic Liquidation” (2002) 57 The Journal of Finance 135 at 136 .

27. MCCORMACK, Gerald, Corporate Rescue Law – An Anglo-American Perspective (Glos: Edward Elgar, 2008) at 122 .

28. FRISBY, Sandra, “In Search of a Rescue Regime: The Enterprise Act 2002” (2004) 67 The Modern Law Review 247 at 248 .

29. The Insolvency Service, A Review of Company Rescue and Business Reconstruction Mechanisms: Report by the Review Group (London: HMSO, 2000) (The 2000 Report) at para 24.

30. WANG, Liming, “Several Issues of Amending China’s Bankruptcy Law” (2002) 5 China Legal Science 78 at 83 .

31. LI, Yongjun, “Xing Pochanfa Jiaodian Wenti Toushi (新破产法焦点问题透视) [Focal Problems of the New Enterprise Bankruptcy Law]” (2006) 10 Caikuai Xuexi (财会学习) [Accounting Studies] 14 at 16 .

32. BRIS, Arturo, WELCH, Ivo, and ZHU, Ning, “The Costs of Bankruptcy: Chapter 7 Liquidation Versus Chapter 11 Reorganization” (2006) 61 The Journal of Finance 1253 at 1301 .

33. WARREN, Elizabeth and WESTBROOK, Jay Lawrence, “The Success of Chapter 11: A Challenge to the Critics” (2009) 107 Michigan Law Review 603 at 609 .

34. LI, Shuguang and WANG, Zuofa, “Zhongguo Pochanfa Shishi Sannian De Shizhen Fenxi (中国破产法实施三年的实证分析) [An Empirical Study of the Implementation of China’s Enterprise Bankruptcy Law During the First Three Years]” (2011) 22 Zhongguo Zhenfa Daxue Xuebao (中国政法大学学报) [The Journal of China University of Political Science and Law] 58 at 60 (this figure was derived from data revealed in a conference presentation by a Beijing lawyer) [Li and Wang, “First Three Years”].

35. See WANG, Xinxin, “Lun Pochan Anjian Shouli Nan Wenti De Jiejue (论破产案件受理难问题的解决) [Difficulties in Commencing Corporate Bankruptcy Processes in China]” (2011) 3 Falu Shiyun (法律适用) [Journal of Law Application] 29 [Wang, “Difficulties of Commencing”].

36. HAN, Changyin and HE, Huan, “Pochan Jiexian De Lifa Gongneng Wenti (破产界限的立法功能问题) [Bankruptcy Tests and Practices]” (2013) 2 Zhenzhi Yu Falu (政治与法律) [Politics and Law] 2 .

37. Tomasic and Zhang, supra note 1 at 311.

38. This article uses the practitioner-in-possession and administrator-in-possession model interchangeably.

39. Booth, supra note 7 at 303.

40. See generally MCCORMACK, Gerard, “Control and Corporate Rescue – An Anglo-American Evaluation” (2007) 56 International and Comparative Law Quarterly 515 [McCormack, “Control and Corporate Rescue”].

41. ROACHE, John T, “The Fiduciary Obligations of a Debtor in Possession” (1993) 1993 University of Illinois Law Review 133 at 140-141 .

42. See BRADLEY, Michael and ROSENZWEIG, Michael, “The Untenable Case for Chapter 11” (1992) 101 Yale Law Journal 1043 at 1044 .

43. See generally NIMMER, Raymond T and FEINBERG, Richard B, “Chapter 11 Business Governance: Fiduciary Duties, Business Judgement, Trustee and Exclusivity” (1989) 6 Bankruptcy Developments Journal 1 .

44. McCormack, “Control and Corporate Rescue”, supra note 40 at 521.

45. ARMOUR, John, CHEFFINS, Brian R, and SKEEL, David A, Jr, “Corporate Ownership Structure and the Evolution of Bankruptcy Law: Lessons from the United Kingdom” (2002) 55 Vanderbilt Law Review 1699 at 1782 .

46. FINCH, Vanessa, “Control and Co-ordination in Corporate Rescue” (2005) 25 Legal Studies 374 at 375 .

47. McCormack, “Control and Corporate Rescue”, supra note 40 at 544.

48. WANG, Xinxin, “Xing Pochanfa De Tupo (新破产法的突破) [Innovations in the New Bankruptcy Law]” (2006) 2 Faren (法人) [Legal Entity Journal] 20 .

49. WANG, Weiguo, “Xing Pochanfa Caoan Yu Gongsi Faren Zhili (新破产法草案与公司法人治理) [The Draft of the New Bankruptcy Law and Bankruptcy Corporate Governance]” (2005) 2 Faxuejia (法学家) [The Jurists] 5 at 7 [Wang, “The Draft”].

50. WANG, Xinxin, “Lun Pochan Guanliren Zhidu Wanshan De Ruogan Wenti (论破产管理人制度完善的若干问题) [Improving the Insolvency Practitioner System]” (2010) 9 Fazhi Yanjiu (法治研究) [Legal Research] 14 at 15 .

51. Wang, “The New Law”, supra note 13 at 39.

52. Li and Wang, supra note 34 at 62.

53. Ibid at 67.

54. Wang, “The Draft”, supra note 49 at 15.

55. Tomasic and Zhang, supra note 1 at 311-315.

56. The reorganization case of Zhejiang Wei’er Trade Limited and its four subsidiaries, which was accepted by Yongkang Lower People’s Court, Zhejiang on 2 September 2009, was not included, because this case was not found by this study due to the limit of the methodology.

57. This table is based on the data collected by Zinian Zhang in 2012-13. Most of these cases were also mentioned in an official report issued by Zhejiang Supreme People’s Court. For western scholars, there are two databases, LawinfoChina and Westlaw China, which collect a huge number of China’s court cases. Zhang tried to use these two databases to verify the collected cases in Zhejiang. Unfortunately, largely because only a small proportion of China’s court cases is included in these two databases, these Zhejiang cases could not be found there.

58. The GDP growth rates were obtained from the World Bank statistics. See The World Bank, “GDP Growth (Annual %)”, online: The World Bank <http://data.worldbank.org/indicator/NY.GDP.MKTP.KD.ZG>.

59. According to a report of Zhejiang Supreme People’s Court, in Wenzhou, one of eleven prefectures of Zhejiang, there were 3,122 judgement debtor companies which were unable to pay their judgement debts from 2010 to 2013, and the local Wenzhou courts had to drop the judgment enforcement procedures because there were not company assets which could be found. In other words, these companies were bankrupt, but the bankruptcy procedures were not used, and these companies just disappeared without being formally investigated through bankruptcy processes. Arithmetically, it could be estimated that there might be about 11,447 companies ((3,122×11)∕3) that were dissolved and were bankrupt in Zhejiang as a whole annually during this three-year period, but they did not enter the formal bankruptcy procedures. Given the annual 56,961 company dissolutions in Zhejiang as shown in Table 3, the real company bankruptcy rate should be at least 20.10 percent. See The Zhejiang Supreme People’s Court, “2012 Zhejiang Fayuan Qiye Pochan Shenpan Baogao (2012年浙江法院企业破产审判报告) [2012 Report on Trying Corporate Bankruptcies]” (6 May 2013), online: Xing Lang <http://blog.sina.com.cn/s/blog_45c1e92a0101mxyd.html#commonComment>.

60. See The Zhejiang Supreme People’s Court, “Zhejiang Fayuan Jieshao” (浙江法院介绍) [An Introduction to the Zhejiang Courts], online: The Zhejiang Supreme People’s Court <http://www.zjcourt.cn/20060320000004/>.

61. Personal Interview, Administrator 2, an accountant, Zhoushan, Zhejiang, China, 12 January 2012.

62. Personal Interview, Administrator 3, a lawyer, Zhoushan, Zhejiang, China, 12 January 2012.

63. In the 1990s, foreign experts advised China to establish a special bankruptcy court system to deal with corporate bankruptcies, but this proposal was rejected. See generally Terence C. HALLIDAY, “The Making of China’s Corporate Bankruptcy Law” (2007) Oxford Series in Law, Justice and Society 2 at 7.

64. In 2012, Zhejiang courts as a whole handled 148 cases per judge. See Jianhua YU and Huanliang MENG, “Zhejiang Fayuan Banan Faguan Renjun Jieanliang Wei Quanguo Pingjunsu Liangbei (浙江法院办案法官人均结案量为全国平均数两倍) [Zhejiang Judges Handled Double the National Average Number of Cases]” Zhejiang Fayuan Xinwen Wang (浙江法院新闻网) [Zhejiang Courts Net] (18 January 2012), online: Zhejiang Courts Net <http://court.gmw.cn/public/detail.php?id=83910>.

65. Two personal interviews: Administrator 2, an accountant, Zhoushan Zhejiang, China, 12 January 2012, and Administrator 3, a lawyer, Zhoushan, Zhejiang, China, 12 January 2012.

66. See also MCGINTY, Andrew and LEOW, VC, “China’s Insolvency Law Two Years On: Are Government-Driven Restructurings the New Trend” (2009) 11 Journal of International Banking and Financial Law 689 .

67. In January 2013, Zinian Zhang had a talk with Mr Hongzhu Zhang, the director of the second civil chamber of the Zhejiang Supreme People’s Court, who is in charge of designating all insolvency practitioners in Zhejiang. During the talk, Mr Zhang confirmed that no training courses or qualification exams were made.

68. Personal Interview, Administrator 2, an accountant, Zhoushan, Zhejiang, China, 12 January 2012.

69. Ibid.

70. Ibid.

71. Personal Interview, Administrator 3, a lawyer, Zhoushan, Zhejiang, China, 12 January 2012.

72. See TANG, Haiqing and SHI, Yinghua, “Mingyin Qiye Pochan Chongzhen Zhi Sifa Tansuo (民营企业破产重整之司法探索) [Private Company Reorganization]” (2011) 12 Fazhi Yanjiu (法治研究) [Legal Research] 102 and 105 (noting that the government guarantee in writing was obtained in that case).

73. Personal Interview, Administrator 3, a lawyer, Zhoushan, Zhejiang, China, 12 January 2012.

74. LIEBMAN, Benjamin L, “A Populist Threat to China’s Courts?” in Margaret YK WOO and Mary E GALLAGHER, eds, Chinese Justice: Civil Dispute Resolution in Contemporary China (Cambridge: Cambridge University Press, 2011), 269 at 282 .

75. Personal Interview, Administrator 2, an accountant, Zhoushan, Zhejiang, China, 12 January 2012.

76. Ibid.

77. See XIA, Zihang, “Cheng Jianlong Bei Xingju ST Jingding Chongzu Xian Zhuanji (陈建龙被刑拘ST金顶重组现转机) [Hopes Arise After the Arrest of Cheng Jianlong]” Meiri Jingji Xingwen (每日经济新闻)[National Business Daily] (10 July 2009), online: National Business Daily <http://www.nbd.com.cn/articles/2009-07-09/225422.html>.

78. Personal Interview, Administrator 1, a lawyer, Hangzhou, Zhejiang, China, 5 January 2012.

79. Ibid.

80. Ibid.

81. XU, Wen, “The Size of Value Added Tax Evasion and Anti-Evasion Measures in China” (2006) 5 Journal of China University of Finance 1 .

82. LOPUCKI, Lynn M, “The Debtor in Full Control – Systems Failure under Chapter 11 of the Bankruptcy Code?” (1983) 57 American Bankruptcy Law Journal 99 at 100 [LoPucki, “Full Control”].

83. Personal Interview, Administrator 2, an accountant, Zhoushan, Zhejiang, China, 12 January 2012.

84. Ibid.

85. WANG, Qing, CHAI, Lingling, and DING, Lingyang, “Jingji Handong Li De Yiqu Jiekun Ge (经济寒冬里的一曲解困歌) [A Relief Song Sung in an Economic Winter]” Shaoxing Ribao (绍兴日报) [Shaoxing Daily] (26 February 2009) at 6 .

86. Hejuan ZHAO, “Nanwang Jituan Chongzhen Fangan Weihuo Tongguo (南望集团重整方案未获通过) [Nanwang Reorganization Plan Failed]” Caijing Wan (财经网) [Caijing] (29 October 2008), online: The Caijing Magazine <http://www.caijing.com.cn/2008-10-29/110024211.html>.

87. Personal Interview, Administrator 2, an accountant, Zhoushan, Zhejiang, China, 12 January 2012.

88. See generally GEYH, Charles G, “Rescuing Judicial Accountability from the Realm of Political Rhetoric” (2005) 56 Case Western Reserve Law Review 911 .

89. LoPucki, “Full Control”, supra note 82 at 100.

90. See the World Bank, Doing Business in China 2011: Making a Difference for Entrepreneurs (Washington, DC: The World Bank, 2010) at 2 (ranking China as seventy-nine out of all 183 economies in respect of ease of doing business, which means China still faces the challenge of building a business-friendly legal environment).

91. They were one company from Jinghua and another one from Pujiang.

92. The company was from Hangzhou.

93. It was a company from Hangzhou, where the reorganization plan was proposed by the debtor itself, and the absolute priority rule was bypassed in that case.

94. The Dadi reorganization case was part of a group reorganization procedure of Hualun Group Limited in the Fuyang City, Zhejiang.

95. Personal Interview, Judge 2, a judge, Hangzhou, Zhejiang, China, 18 January 2012.

96. Pujiang Lower People’s Court, “Zhejiang Tianting Zhiye Youxian Gongsi Pochan Chongzhen Gongzuo De Jingyan Zongjie (浙江天听纸业有限公司破产重整工作的经验总结) [Experience in Handling the Reorganization Procedure of Tianting Paper Limited]” 89 (on file with authors).

97. Ibid.

98. Personal Interview, Administrator 1, a lawyer, Hangzhou, Zhejiang, China, 5 January 2012.

99. Ibid.

100. Ibid.

101. Personal Interview, Judge 2, a judge, Fuyang, Zhejiang, China, 17 January 2012.

102. See generally WANG, Xinxin, “Chongzheng Zhidu Lilun Yu Shiwu Xinglun (重整制度理论与实务新论) [Theories and Practices of Corporate Reorganization]” (2012) 11 Falu Shiyun (法律适用) [Journal of Law Application] 10 (discussing the widely-used going concern sale rescues in China).

103. Personal Interview, Administrator 2, an accountant, Zhoushan, Zhejiang, China, 12 January 2012.

104. Personal Interview, Administrator 8, a lawyer, Hangzhou, Zhejiang, China, 6 January 2012.

105. It would be quite difficult for Chinese courts to remain independent when handling administrative cases in which government authorities are challenged by citizens. See generally O’BRIEN, Kevin J and LI, Lianjiang, “Suing the Local State: Administrative Litigation in Rural China” in Neil J DIAMANT, Stanley B LUBMAN, and Kevin J O’BRIEN, eds, Engaging the Law in China (Stanford: Stanford University Press, 2005), 31 .

106. See HE, Xin, “The Recent Decline in Economic Caseloads in Chinese Courts: Exploration of a Surprising Puzzle” (2007) 190 The China Quarterly 352 at 371

107. See generally LI, Ling, “Performing Bribery in China: Guanxi-Practice, Corruption with a Human Face” (2011) 20 Journal of Contemporary China 1 (noting the rampant bribe-taking of judges in China).

108. Liebman, supra note 74 at 282.

109. HOWSON, Nicholas C, “China’s Judicial System and Judicial Reform” (2011) 54 Law Quadrangle 62 at 64 .

110. Liming Wang also mentions that Chinese courts are anxious in accepting petitions of minority shareholders against Chinese listed companies, because plaintiffs are usually very large in numbers. See WANG, Liming, “Security Tort Remedies for Minority Shareholders in Chinese Stock Markets” (2012) 6 Securities Law Review 6 .

111. Professor Xinxin Wang also argues that courts are usually unfairly treated by governments when handling corporate reorganization matters in China. See Wang, “Difficulties of Commencing”, supra note 35 at 30. See also TAO, Jiaolong and CHEN, Jian, “Xingfang Zhidu De Fansi Yu Chonggou (信访制度的反思与重构) [Problems and Perspectives of the Xing Fang System]” (2006) 5 Falu Shiyun (法律适用) [Journal of Law Application] 76 at 78 (noting that courts and judges will be disciplined even if a mass petition is not because of their fault).

112. See generally MINZNER, Carl F, “China’s Turn Against Law” (2011) 59 American Journal of Comparative Law 935 .

113. See the Social Development Research Team of Tsinghua University, “China’s Sustainable Social Security Should be Based on Freedom of Expression” (April 2010) (this report criticizes China’s current social stability assessment systems, warning that these systems are counterproductive and unsustainable).

114. See generally GEWIRTZ, Paul, “Independence and Accountability of Courts” (2002) 1 Global Law Review 7 .

115. See generally RADIN, Margaret Jane, “Reconsidering the Rule of Law” (1989) 69 Boston University Law Review 781 (arguing that the rule of law requires that all public authorities must be held accountable). See also UNSC, “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General”, UN Doc S/2004/616 (23 August 2004), online: The United Nations, Inter-Parliamentary Union <http://www.ipu.org/splz-e/unga07/law.pdf>.

116. See WOODWARD, William J, Jr, “‘Control’ in Reorganization Law and Practice in China and the United States: An Essay on the Study of Contrast” (2008) 22 Temple International & Comparative Law Journal 141 at 144 (arguing that the court acceptance procedure may cause delay and inefficiency in corporate reorganizations in China).

117. Wang, “Difficulties of Commencing”, supra note 35 at 32.

118. WANG, Weiguo, ZOU, Hailin, and LI, Yongjun, “Pochanfa Shinian (破产法十年) [Ten Years of Drafting the Enterprise Bankruptcy Law]” (Seminar of the Civil and Commercial Law Centre, China University of Political Science and Law, 12 March 2004), online: The Civil and Commercial Law Centre of China University of Political Science and Law <http://www.cupl.edu.cn:81/html/msjjfxy_xsw/col531/2011-11/19/20111119110131584730800_1.html>.

119. See generally O’DONNELL, Guillermo, “Why the Rule of Law Matters” (2004) 15 Journal of Democracy 32 .

120. AGRAST, Mark David et al., Rule of Law Index 2012-2013 (Washington, DC: The World Justice Project, 2012-2013).

121. Ibid.

122. See generally POTTER, Pitman B, “Legal Reform in China: Institutions, Culture, and Selective Adaptation” (2004) 29 Law & Social Inquiry 465 .

123. Zou, supra note 9 at 50-51.

124. TAO, Jiaolong and SHI, Hexing, “Sifa Shiwu Shiye Xia Pochan Chongzheng Zhidu Ruogan Wenti Yanjiu (司法实务视野下破产重整制度若干问题研究) [Challenges of Corporate Reorganization in Judicial Practice]” (2012) 11 Falu Shiyun (法律适用) [Journal of Law Application] 30 .

125. See generally WEINZIMMER, Laurence G and MCCONOUGHEY, Jim, The Wisdom of Failures (San Francisco: Jossey-Bass, 2013).

126. LOPUCKI, Lynn M and WHITFORD, William C, “Corporate Governance in the Bankruptcy Reorganization of Large, Publicly Held Companies” (1993) 141 University of Pennsylvania Law Review 669 at 675 . See also EISENBERG, Theodore, “Baseline Problems in Assessing Chapter 11” (1993) 43 University of Toronto Law Journal 633 at 664 .

127. KING, Lawrence P, “Chapter 11 of the 1978 Bankruptcy Code” (1979) 53 American Bankruptcy Law Journal 107 at 114-115 .

128. The World Bank, supra note 90 at 75.

129. See SKEEL, David A, Jr, “Bankruptcy Phobia” (2009) 82 Temple Law Review 333 .

130. See AXE, Kenneth B, “Penetrating the Iron Curtain: Representing Secured Creditors in Chapter 11” (1984) 67 Marquette Law Review 421 at 423 .

131. See SENBET, Lemma W and SEWARD, James K, “Financial Distress, Bankruptcy and Reorganization” in RA JARROW, V MAKSIMOVIC, and WT ZIEMBA, eds, Handbooks in Operation Research and Management Science, vol 9 (Amsterdam: Elsevier, 1995), 921 at 933 .

132. LoPucki, “Full Control”, supra note 82 at 100.

133. See CLARKE, Donald C, “The Execution of Civil Judgements in China” (1995) 141 The China Quarterly 65 . See also CLARKE, Donald C, “Power and Politics in the Chinese Court System: The Enforcement of Civil Judgements” (1996) 10 Columbia Journal of Asian Law 1 .

134. See HAN, Changyin and HE, Huan, “Pochan Jiexian De Lifa Gongneng Wenti (破产界限的立法功能问题) [Problems of the Bankruptcy Tests]” (2013) 2 Zhenzhi Yu Falu (政治与法律) [Politics and Law] 2 at 9 .

135. See generally TSAI, Lily L, Accountability Without Democracy: Solidary Groups and Public Goods Provision in Rural China (Cambridge: Cambridge University Press, 2007).

136. SOLOMON, Peter H Jr, “Courts and Judges in Authoritarian Regimes” (2007) 60 World Politics 122 .

137. See ECONOMY, Elizabeth C, “The Great Leap Backward? The Costs of China’s Environmental Crisis” (2007) 86 Foreign Affairs 38 at 39 .

138. There have already been some debates in Chinese academic circles, but more in-depth and empirical research is needed. See for example LI, Yongjun and LI, Dahe, “Chongzhen Chenxu Kaishi De Tiaojian Ji Sifa Shencha (重整程序开始的条件及司法审查) [The Conditions of the Beginning of the Reorganization Procedure and Its Judicial Review: A Query Into the Merger Reorganization]” (2013) 26 Beijing Hangkong Hangtian Daxue Xuebao (北京航空航天大学学报) [Journal of Beijing University of Aeronautics and Astronautics (Social Sciences Edition)] 48 , and WANG, Xinxin and ZHOU, Wei, “Guanlian Qiye De Hebin Pochan Chongchen Qidong Yanjiu (关联企业的合并破产重整启动研究) [Entry to Consolidated Reorganization of Related Companies]” (2011) 29 Zhenfa Luntan (政法论坛) [Tribune of Political Science and Law] 72 . See also STEPHEN, Gilbert J, “Substantive Consolidation in Bankruptcy: A Primer” (1990) 43 Vanderbilt Law Review 207 (discussing bankruptcy consolidation in the US), and The Jones Day LLP, “Substantive Consolidation and Non-debtor Entities: The Fight Continues” (May/June 2011), online, The Jones Day LLP <http://www.jonesday.com/Substantive-Consolidation-and-Nondebtor-Entities-The-Fight-Continues-06-01-2011/?RSS=true>.

* Lecturer at School of Law, University of Leeds, England; previously Research Fellow at the Centre for Cross-Border Commercial Law in Asia, School of Law, Singapore Management University, Singapore.

** Professor of Law, School of Law, University of South Australia, GPO Box 2471, Adelaide, 5001, Australia, and Visiting Professor of Company Law, Durham Law School.

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Asian Journal of Comparative Law
  • ISSN: 2194-6078
  • EISSN: 1932-0205
  • URL: /core/journals/asian-journal-of-comparative-law
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