试析关联企业中特殊债权人问题（Analysis of special creditors in affiliated enterprises）

1、试析关联企业中特殊债权人问题（Analysis of special creditors in affiliated enterprises）Analysis of special creditors in affiliated enterprisesThis article source: paper /Abstract: an important characteristic of the contemporary economy is that the enterprise group (associated enterprise) is the center to develop, w

2、hich is one of the effective ways to realize scale economy. But it also produces negative effects that can not be ignored, such as affiliate firms becoming the tools for controlling companies to cheat. Among the many legal issues involved by affiliated enterprises, the protection of subordinated cre

3、ditors is of particular concern. Chinas law is still a blank. Briefly introduced the system of affiliated enterprises, and lists the relevant legislation in other countries and regions, that the limited liability and the disregard of corporate personality is the legal basis of the protection of the

4、creditors of the subordinate company; and the choice of legislative mode in China, control requirements and corporate responsibility form, direct procedural right of creditors, the burden of proof and other issues to carry on the discussion, preliminary form the legal framework for protecting the cr

5、editors of subsidiary company.Key words: affiliated enterprise; affiliated company; creditor protectionTodays world economic structure has entered the era of big companies and big groups as the center. The Chinese government has always taken the formation and development of enterprise groups as the

6、basic means of deepening economic reform, opening up the international market and adapting to the increasingly enhanced international market competitiveness. 8 departments, including the State Economic and Trade Commission, issued the Guidance Opinions on the development of large enterprise groups w

7、ith international competitiveness at the end of 2001. On the other hand, in 2002, China attracted foreign investment and exceeded 50 billion US dollars, becoming the first in the world. As of the end of October 2002 the country has approved 417655 foreign-invested enterprises 1, the multinational co

8、mpanies to set up subsidiaries in Chinese, with equity funds China company has become the most important way. Chinas entry into WTO has not only brought about a new round of investment upsurge by transnational corporations, but also brought about new growth points in scale and quantity.Although the

9、economies of scale brought about by related enterprises have incomparable advantages, the negative effects on the society and economy can not be ignored.In practice, affiliated companies have become a common phenomenon in controlling the company from evading taxes, defrauding bank loans, or passing

10、on operational risks and damaging the interests of creditors. This famous jurist Jiang Ping once pointed out: visionary in China, because the company law enacted just a few years, the company law enforcement regulations is still inadequate, especially chaos system legislation related enterprises als

11、o has not put on the agenda, only sporadic laws and regulations has been involved in academic research, on the whole is a blank field, this can cause the anxiety of a person with breadth of vision. In this regard, the author believes that the protection of subordinated creditors is particularly note

12、worthy in many legal issues involved in affiliated enterprises.A subordinate company creditor protection theoretical basis (a) the legal basis to protect the creditors of the subordinate company affiliated enterprises play more and more important role in the realistic economic life at the same time,

13、 it proposed to the classical theory of company law in question can not be ignored. The author believes that the principle of limited liability exception and disregard of corporate personality run through the legal framework of subsidiary company creditor protection, and it is a deep legal basis. Th

14、e principle of limited liability company and the company legal system, for the need of the social life, and is set to public facilities and public interests; if the corporation is to set up a subordinate or antisocial tendency illegal purpose or other not allowed for the public interest, legal natur

15、e has the right to break the limited liability, disregard of corporate personality in order to safeguard the overall interests of the society. The exception of limited liability and the application of disregard of corporate personality in affiliated enterprises are the needs of social and economic d

16、evelopment, the perfection of corporate legal person system, and the need to realize the legal justice and justice value. Just as the other interested parties advocated by the American scholars, the purpose of legislation to protect the interests of creditors and other stakeholders is 2. But the two

17、 principles must be used carefully, can be applied under certain circumstances only occur between the holding company and subsidiary, otherwise they will be denied abuse of their own value, causing serious confusion and impact to the corporate system. Carry out limited liability and principle of cor

18、porate personality in our current law and deny not much obstacles, the principle of good faith, the principle of prohibiting abuse of rights and safeguarding the public interests and social economic order principles are based on the principles of law are 3.(two) the definition of affiliated enterpri

19、sesAssociated enterprise is a combination of 4 enterprises formed by specific means between enterprises to achieve specific economic purposes. The concept of affiliated enterprise is different in different countries, and its forms of expression are inconsistent. In a sense, affiliated enterprise is

20、an enterprise group, or enterprise group is a typical form of related enterprise. As far as the relation between affiliated enterprise and transnational corporation is concerned,The author thinks that the only difference between them is that multinational companies exceeded the border. As a matter o

21、f fact, transnational corporations are also a typical form of related enterprises, including the adjustment of their parent and subsidiary companies in the domestic law measures concerning the regulation of transnational corporations. In practice, affiliated enterprises usually have two forms of who

22、lly owned parent subsidiary companies and non wholly owned parent and subsidiary companies in accordance with the standards that control companies own all or most of the shares of affiliated companies.There are prevalent controlling companies and subsidiary companies in affiliated enterprises. A con

23、trolling company is an enterprise that exerts a decisive influence on him directly or indirectly, and he is a subsidiary company. The relationship between domination and subordination, control and control is the particularity of the affiliated enterprise in the law, and it is also the root cause of

24、the protection of the affiliated companys creditors. The control and subordination in affiliated enterprises enhance the risk of subordinated company creditors, mainly in the realization of creditors right to contract or claim for damages. On the one hand, the principle of the traditional corporate

25、law recognizes that the company and the shareholders are different legal subjects. The company is an independent legal entity, and the shareholders are responsible for the debts of the company only within the limits of their contribution under the principle of limited liability. Therefore, the contr

26、olling company, as the dominant shareholder in the subsidiary company, and other shareholders, is not directly liable for the debts of the subsidiary company. On the other hand, the control company directly uses its dominant management position, through the exercise of voting rights and other means,

27、 so that affiliated companies in accordance with the needs of the overall interests of affiliated enterprises to engage in business activities. The subordinate company has maintained a form of independence, but the decision-making ability basically lost, especially the transfer of financial decision

28、-making ability to control the company, any profit flow between the members of the affiliated enterprise, will lead to the ability to pay the subordinate company weaken, endanger the legitimate interests of the subsidiary company creditors.Unfortunately, our protection of subordinated creditors is s

29、till a blank in legislation. The company law of China only stipulates the limited liability system, and does not stipulate the protection of the creditor of subsidiary company. Therefore, it is urgent to construct a perfect legal framework to protect the legitimate interests of subordinated creditor

30、s.Two, the legislation and practice of subsidiary company creditor protection at home and abroad related to debt processing in enterprises, from the practice of various countries, mainly through two ways to solve. One is based on the traditional corporate limited liability exception to piercing the

31、corporate veil, to control the company liable to its subordinate companys behavior and debt, the second is provided directly by the responsibility of specific legislation on affiliated enterprise. The common law countries not related to corporate debt processing special legislation, but in practice,

32、 but there is a lot of this kind of debt case, and in these cases on the basis of theoretical development, this is the famous piercing the corporate veil theory. Unveiling the veil is an important method used by common law countries in dealing with the responsibility of a member enterprise in an ass

33、ociated enterprise. The core of the doctrine is to deny the company personality, that is, to control the companys contractual or tort liability for subsidiary companies, whether or not the two companies are independent legal subjects. German Stock Law provides another way to solve the problem of aff

34、iliated enterprise debt. The provisions of the provisions of articles 300th to 303rd are mainly for the protection of the interests of creditors of subsidiary companies. The 308th to the 310th rules have dual purposes of protecting the interests of subordinated creditors and minority shareholders at

35、 the same time. German company law to improve the statutory surplus reserve, the highest amount of surplus, the loss of commitment to provide guaranty for the creditor, control of the company responsible persons, subordinate company directors and supervisors of the responsibility, the adverse effect

36、s of prohibition and other measures to protect the creditors of the subordinate company.The four clause of the 369th amendment to the company law of the Taiwan stipulates that the creditor of a subsidiary company may request the controlling company or its principal to bear joint and several liabilit

37、y with the subordinate company within the scope of their compensation obligations. There are also provisions of the de facto directors of the French bankruptcy law, namely, the effect of the extent of the bankruptcy of the subsidiary can be extended to the property of the parent company, which is le

38、gally regarded as a director of the subsidiary.The ninth recommendation of the EU company law states that the controlling enterprise of the group shall be liable for the debts of the subsidiary company. The commercial code of Korea stipulated that the liability of the parent company to the subsidiar

39、y company should be solved by the one man company legal principle 5.Our country still strictly abide by the principle of limited liability, and the company law of our country has no definite provisions on the protection of the creditor of subordinated companies. Chinese scholars have also made some

40、research on this issue, introduced foreign legislation, and made some suggestions according to the actual situation in China, but has not put forward a more perfect legal framework.Three, the construction of the legal framework of subordinated company creditor protection, the protection of subordina

41、ted company creditor,So far, it is still a pressing problem that has not yet aroused enough attention in legislation. After Chinas accession to the WTO, not only will Chinese enterprises expand in the form of affiliated enterprises, but also more and more foreign enterprises will seize Chinas capita

42、l market by means of such capital participation. Therefore, the author believes that the legal framework for the protection of creditors of subordinated companies should be constructed as soon as possible so as to protect the legitimate interests of creditors and maintain a fair and reasonable socia

43、l and economic order.(a) to protect the creditors of the subordinate company mode legal protection creditors of the subordinate company mainly has two kinds, one is the common mode - piercing the corporate veil, the other is a German model - a kind of legislation about affiliated enterprises. The es

44、sence of the two are highly developed in the relationship between enterprises and the associated joint case, deny the independence of the company in the form of legal, dependence and from the property in essence that between companies, paving the way for the effective protection of the creditors of

45、the subordinate company, overcome the shortcomings of traditional company law.But the comparative study on both legal system, content and scope of the different, I think our country should be in the company law and relevant laws and regulations in the clear legal provisions to protect the creditors

46、of the subordinate company, and shall provide beforehand protection and post protection. Ex ante protection is mainly applicable to the affiliated enterprises maintained by the contract, that is, to clarify the rights and obligations of the parties concerned through the enterprise contract. Joint co

47、ntracts, contract contracts, lease contracts, entrusted operating contracts and trust management contracts, which are concluded in the joint venture of enterprises in China, may produce unified management and control relations among enterprises. Therefore, it is possible to make relevant legal provi

48、sions in the conclusion of such contracts so as to provide ex ante protection to subordinated creditors.In terms of ex ante protection, we can draw on German legislation, such as raising the statutory surplus reserve fund, limiting the maximum amount of earnings transfers, compensating for losses, a

49、nd providing security to creditors. For prior protection, some scholars believe that can also be in the Multinational Parent Company in China set up subsidiaries in the Charter, clearly defined the responsibility of parent company, in accordance with the current regulations to strengthen the parent

50、company management, prevent the parent company subsidiary operating difficulties caused by investment shortage, damage the interests of creditors 6. Ex post protection is mainly applied to related enterprises linked by assets, that is, enterprises formed by capital participation. It is mainly to pro

51、tect the interests of the creditors of the subordinate company after damage, how to ask the subordinate company or control responsibility make the relevant provisions, such as the control of the company needs to take responsibility for the creditors of the subordinate company in what circumstances,

52、whether creditors can be directly to the control of the company Zhang Zhaiquan, whether by creditors of proof etc. Only when the protection in advance and after the event is protected in the legislation clearly can we take preventive measures and take remedial measures in a timely manner. (two) to c

53、ontrol the composition and form of corporate responsibility, there are certain control and control relations between the controlling company and the affiliated company in the enterprise. But that does not mean that the controlling company needs to be responsible for all the affiliate actions and not

54、 necessarily responsible for all the creditors of the subsidiary company. In general, only when damaged the interests of the creditors of the subordinate company, is due to control of the company by the subordinate company and avoid legal obligation caused by subjective intent to escape, only when t

55、he behavior control company does have damaged the interests of the creditors of the subordinate company, only when there is a causal relationship between the behavior and control of the companys subsidiary company the interests of the creditors of the subordinate company, to the company to control t

56、he request right. If the control company and the subsidiary company have the actual control relations, but have not utilized this kind of relation, to dodge and evade the contract obligation, the control company does not need to be responsible to the subsidiary company creditor. If the companys pers

57、onality is controlled by the abuse of the company, but in fact it does not damage the interests of the creditors of the subsidiary company, nor does it need special protection.Many countries and regions have their own control of corporate liability when protecting subordinated creditors, and there i

58、s no uniform standard at present. Based on the comparative analysis of the control requirements of liability company, combining the related enterprises in the specific performance of our country, that the creditors of the subordinate company in the company responsible for the control requirements, t

59、he following requirements of liability as control, comprehensive consideration: 1. subordinate company significant shortage of capital of traditional company law three the principle of - the recognition of capital, capital and capital maintenance of the same. According to the traditional company law

60、, company law should meet the statutory capital requirements in the establishment of the company, and the capital subscribed, fully subscribed, paid; in the course of business, the company shall maintain the companys total capital and the corresponding property; non legal procedures shall not change