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


ISBN13: 9781509945658
Published: July 2022
Publisher: Hart Publishing
Country of Publication: UK
Format: paperback (Hardback in 2021
Price: £42.99
Hardback edition , ISBN13 9781509932443



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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.

Subjects:
Other Jurisdictions , China
Contents:
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 AND 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 not Viable for Certain Types of 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 AND 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. Recent Reform Initiatives 2015–20
12.1. What Set Off Recent Bankruptcy Law Reform?
12.2. Summary of Key Reforms 2015–20
12.3. Reform 1: Encourage Greater Use of the EBL – Resolving Zombie Companies
12.4. Reform 2: Specialised Bankruptcy Courts and Administrator Associations
12.5. Reform 3: EBL Platform
12.6. Reform 4: Judicial and Political Guidance
12.7. Reform 5: Local Conferences and Experience-sharing Events
12.8. Reform 6: Simplified EBL Procedure
12.9. Reform 7: Personal Bankruptcy
12.10. Reform 8: Bankruptcy Assistance Fund
12.11. Reform 9: Judges' Evaluation System for Resolving EBL Cases
12.12. Reform 10: Cooperation with Local Party-state
12.13. The Future
PART IV: FOREIGN STAKEHOLDERS AND 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