| 英文摘要 |
In the judicial practice of mainland China, the standard of the application for and approval of substantive consolidation are featured by the assets and liabilities of corparete group being hopelessly entangled, resulting in a high degree of confusion in legal personality, meanwhile, the creditors’benefits and the conducive effects are the supplemental standards of substantive consolidation. In other countries or regions, other factors like creditors’benefits, creditor reliance and fraud may also be included in the standards for the application of substantive consolidation. The theory in mainland China that the major standard is“the assets and liabilities of related enterprises being hopelessly entangled, resulting in a high degree of confusion in legal personality”is derived from the rules of“piercing the corporate veil”which stipulated in the Corporation Law, and in practice, substantive consolidation is construed as a special application of“piercing the corporate veil”in bankruptcy. This is such construed because the Enterprise Bankruptcy Law does not stipulate the rules for substantive consolidation, and judges have to resort to the theory of“piercing the corporate veil”in the Corporation Law in many substantive consolidation cases. This article discusses the theories like“piercing the corporate veil”and“corporate entity”pertaining to the substantive consolidation and analyzes the differences and advantages/disadvantages of various standards constructed on different theoretical choices. This article finds that the applicants for the substantive consolidation include, but not limited to, debtors, creditors and administrators, and the theories for the legal rules to back up their respective claims shall be different. Guided by diversified theories, distinguishing between the acceptance standards and approval standards for substantive consolidation of corporate group in bankruptcy will be conducive to the scientific development and reasonable application of substantive consolidation in mainland China. |
