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Corporate Bankruptcy Law in China: Principles, Limitations and Options for Reform

Corporate Bankruptcy Law in China: Principles, Limitations and Options for Reform

Author: Natalie Mrockova
Publisher: Hart Publishing
ISBN: 9781509932443

Published In: January 2021
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Paperback Edition ISBN: 9781509945658

List Price: HKD 1,300.00

HKD 1,261.00 Save HKD 39.00 (3%)

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This fascinating study uses qualitative and quantitative data and insights from interviews with judges, lawyers, government officials, entrepreneurs, bankers, consultants, and academics in China and abroad, to provide a new perspective on the problems that have hindered the implementation of the Enterprise Bankruptcy Law in China, and recent attempts at reform.

The analysis provides unique insights into China's business world and its interaction with the judicial and political system in China. In addition, the book also provides important information about how the Enterprise Bankruptcy Law affects foreign companies, agencies and governments that are active in China. The author draws on empirical data, decided cases and her experience of how the law and surrounding practices deal with foreign stakeholders whose interests are affected by corporate bankruptcy in China.

The book will improve understanding of how China's corporate bankruptcy law has been used in practice, what has limited its practical effectiveness, whether it is desirable for the law to be used more readily in China, and the possible options for its reform.

1. Introduction

1.1 Theoretical Framework: Economic Analysis of Law

1.2 Why Bankruptcy Law Matters

1.3 Methodology

1.4 Structure of the Book

PART I: BACKGROUND

2. China's Socio-economic, Political and Legal Environment

2.1 Economic and Political transformation of China

2.2 Power and the Party-state

2.3 Laws and Rules in China

2.4 Courts, the Party-state and Limited Law Enforcement in China

2.5 Corporate Ownership and Control in China

3. Debt finance and enforcement in China

3.1 Debt Finance in China

3.2 Companies' Access to Credit in China

3.3 Debt Enforcement Mechanisms in China

3.4 General Challenges to Debt Enforcement in China

PART II: The EBL & ITS PRACTICAL LIMITATIONS

4. Bankruptcy Law in China

4.1 History of Bankruptcy Law in China

4.2 Black-letter Overview of the Enterprise Bankruptcy Law 2006

4.3 Supreme People's Court's Interpretations and Judicial Cases

4.4 Personal Bankruptcy Law

5. Limited Use of the Enterprise Bankruptcy Law 2006 and Its Causes

5.1 Limited Use of the Enterprise Bankruptcy Law 2006

5.2 Reasons for the Limited Use of the EBL – the Four 'Constraints'

6. The First Constraint – Creditors and Debtors Feel Insufficiently Protected under the EBL

6.1 Implications of Courts' Duties to Protect Employees

6.2 Heightened Threat Of Scrutiny And Liability Under the EBL

6.3 Insolvency As De Facto Entry Requirement For Reorganisation

7. The Second Constraint – Reduced Recoveries Under the EBL

7.1 General Flaws in Debt Enforcement That Negatively Affect Recoveries Under the EBL

7.2 Shortcomings That Specifically Affect EBL Enforcement

7.3 The EBL May Not Be a Viable Option Due to Nature of Certain Debt Contracts

8. The Third Constraint – Limitations and Biases of EBL Enforcers

8.1 Courts' and Lawyers' Internal Limitations

8.2 Administrators' Passivity

8.3 The Party-State's Influence over Court Enforcement of the EBL

9. The Fourth Constraint – Non-EBL Debt Enforcement Mechanisms

9.1 Private Alternatives and Their Perceived Advantages

9.2 Politically-Driven Alternatives and Their Perceived Advantages

PART III: DESIRABILITY & OPTIONS FOR REFORM

10. Desirability of Reforming Bankruptcy Law in China

10.1 Is a Greater Use of Bankruptcy Law in China Desirable?

10.2 Benefits of Greater Use of (Reformed) EBL

10.3 Nature of Further Reform

11. Options for Reform

11.1 Reforms Aimed at Improving EBL Provisions

11.2 Reforms Aimed at Improving EBL Enforcement Practices and Surrounding Rules

11.3 Reforms Aimed at EBL Enforcers

12. Local Reform Initiatives 2015-2020

12.1 What Set Off Recent Bankruptcy Law Reform

12.2 Summary of Key Reforms 2015-2020

12.3 Reform I: Encourage Greater Use of the EBL – Resolving Zombie Companies

12.4 Reform II: Specialised Courts Bankruptcy and Administrator Associations

12.5 Reform III: EBL Platform

12.6 Reform IV: Judicial and Political Guidance

12.7 Reform V: Local Conferences and Experience-Sharing Events

12.8 Reform VI: Simplified EBL Procedure

12.9 Reform VII: Personal Bankruptcy

12.10 Reform VIII: Bankruptcy Assistance Fund

12.11 Reform IX: Judges' Evaluation System for Resolving EBL Cases

12.12 Reform X: Cooperation with Local Party-State

12.13 The Future

PART IV: FOREIGN STAKEHOLDERS & the EBL

13. The Role of Foreign Parties in Corporate Bankruptcy Cases in China

13.1 Foreign Influence in the Making of the EBL

13.2 Rules and Guidance that Govern Cross-border Bankruptcies in China

13.3 Foreign Stakeholders in Corporate Bankruptcy Cases in China

CONCLUSION

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