Lame-Duck Bankruptcy Institutions Under Government Intervention in Reorganisation of Listed Companies in China

Abstract

Government intervention in the bankruptcy reorganisation of listed companies in China constitutes a major obstacle to implement the Enterprise Bankruptcy Law of the People’s Republic of China which was enacted in 2006 (2006 EBL).1 The 2006 EBL improves upon its predecessor legislation—the 1986 EBL, which granted extensive powers to the Chinese government for its administrative control over the bankruptcy of enterprises, mainly state-owned enterprises. A new administrator mechanism has been established to replace the old liquidation group; the power of the creditors’ meeting has been strengthened and the creditors’ committee has been established in the 2006 EBL to better protect the interests of the creditors, which was intentionally ignored under the 1986 EBL; the people’s court obtained more powers in confirming the reorganisation plans by using its cramdown power and controlling the bankruptcy proceedings under the 2006 EBL. One of the goals of the lawmakers to improve these bankruptcy institutions is to reduce the government intervention in China and protect the interests of stakeholders. However, government intervention in fact renders these bankruptcy institutions weak and cannot function as expected by the lawmakers. This article argues that the government should return the powers to the bankruptcy institutions in order to let the bankruptcy system serve a better function in China’s market.

This article is published in two parts. The first part discusses the negative effects of government intervention on bankruptcy institutions. The second part, appearing in the next issue, analyses the effects of the reorganisation on the listed companies exerted by the government.