Abstract: There is still no consensus in theory and practice on the out-of-court restructuring involved in bankruptcy trials in China. In particular, with the active exploration of pre-reorganization by local people’s courts, the relationship between out-of-court restructuring and pre-reorganization has become complex and delicate, but on the whole demonstrates a trend of separation from each other. And pre-reorganization is evolving into a judicial procedure that is different from reorganization proceedings but aims to regulate out-of-court restructuring activities, and has the momentum of being introduced into the revised Enterprise Bankruptcy Law. Pre-reorganization in judicial practice is a new type of proceedings benchmarked against the reorganization proceedings, and due to the insufficient supply of higher-level law norms, the practices of different local people’s courts are also diverse, and there are many flaws or uncertainties in its concept, structure and effect of proceedings, which cannot be regarded as being in the same category as reorganization proceedings (including simplified reorganization proceedings) and is far from reaching the goal of the Supreme People’s Court to “improve the connection mechanism between out-of-court restructuring and in-court reorganization”. The revision of the Enterprise Bankruptcy Law should focus on improving the corresponding institutional measures to encourage and support out-of-court restructuring, especially the information disclosure system for out-of-court restructuring matters, measures for implementing the creditors’ right to know, and the voting exemption benefits for the draft reorganization plan.

Key Words: reorganization proceedings; out-of-court restructuring; pre-reorganization; reorganization transactions; draft reorganization plan 

Author: Zou Hailin, research fellow, CASS Institute of Law;

Source: 5 (2024) Journal of Shanghai Institute of Political Science and Law.