混合企业救援实践下的预重整制度构建

The Construction of Prepackaged Plans System under the Practice of Hybrid Enterprise Rescue

预重整属于衔接庭外重组与司法重整的制度程序,当前我国在法律层面尚无规定,但实践中存在多种模式,既有类似美国法上的预重整,也有类似欧洲法上的破产前程序,混合了多种形态。尽管我国预重整实践确实发挥了拯救困境企业的有利作用,但由于功能定位不清,导致其与司法重整发生功能混同,模糊了预重整本身的制度价值。在进一步厘清预重整的概念、性质,特别是明确其与破产前程序异同的基础上,我国预重整构建仍要定位于司法最低限度介入下单纯的庭外重组。进入司法重整后,法院应当重点审查的是预重整阶段的信息披露是否充分、预先表决的计划草案能否被确认以及保障相关利益方的异议权。

Prepackaged plans are institutional procedures that bridges out-of-court restructuring and judicial reorganization. Currently, there are no legal provisions in China, but there are various models in practice, ranging from prepackaged plans originating from the American law, to pre-insolvency proceedings from the European law,and therefore, the practice in China embodys a mixture of the said forms. Although the practice of prepackaged plans in China has indeed played a beneficial role in rescuing troubled enterprises, the unclear functional positioning has led to their confusion with judicial restructuring and blurred the institutional value of prepackaged plans themselves.On the basis of further clarifying the concept and nature of prepackaged plans, especially the differences and similarities between the prepackaged plans and pre-insolvency proceedings, the prepackaged plans in China should still be constructed in a pure out-of-court reorganization with minimum judicial intervention. Upon entering into judicial reorganization, the court should focus its review on the fulfillment of information disclosure during the prepackaged plans phase, whether the pre-voted draft plan can be confirmed, and the protection of the right to object by the relevant parties in interest.