重整制度的法律移植──以降低表決「鉗制」問題影響為視角

This essay explores how hold-out problems in corporate restructuring law are addressed through mandatory disclosure and the absolute priority rule (APR) in Mainland China and in other markets that have adopted reforms that based on Chapter 11 of the US Bankruptcy Code 1978, which are the United Kingdom and Singapore. The central thesis of this essay is that the choices on treatment of creditors and shareholders should be based on economic efficiency in reducing the transaction costs of the restructuring. However, the solutions that are adopted must be appropriate for the institutional structure that is present in the jurisdiction. As such, this essay argues that mandatory disclosure of information by debtor companies to creditors in a debtor in possession regime is required because controlling shareholders are not often incentivised share information to the creditors. The APR as a tool to mitigate hold-out behaviour for creditors has both benefits and costs and these trade-offs must be carefully considered. The APR is not costless and insisting on the strict version of the APR may actually be counterproductive in addressing the hold-out problem. While corporate bankruptcy law addresses similar economic problems and goals across jurisdictions, the solutions reached by one jurisdiction may differ depending the problems and the extent thereof and the political economy. Thus, there can be no ‘one size fits all’ solution that applies to all jurisdictions.