破产重整中商业银行债转股问题研究

Research on Commercial Banks'Debt-to-Equity Swap in Bankruptcy and Reorganization

当前,新一轮银行债转股拉开了序幕。破产重整程序中的债转股尤其复杂,涉及到公司法和破产法的双重性质和应用。从法理和立法上分析,破产重整中银行债转股符合现行法律规定和精神,并无明显的法律障碍,但重整过程中银行债权人的个别谈判权和决定权却往往得不到相应的保障,这不但与市场化、法治化的政策导向不符,更可能为将来埋下严重的法律隐患。

Currently the banks are launching a new round of debt-to-equity swaps. The debt-to-equity swaps in bankruptcy reorganization proceedings are particularly complex, as they involve both the corporate law and the bankruptcy law. Based on the judicial and legislative analysi＆ converting bank debts to equity in the bankruptcy and restructuring cases is in line with the provisions and guiding spirit of the current laws, and there are no obvious legal obstacles, but the banks＇ individual bargaining power and decision-making as creditors are often not legally protected or respected, which not only fails to conform to the policy orientation of marketization and rule of law, but is very likely to create serious hidden legal risks for the future.