دانلود رایگان مقاله انگلیسی ورشکستگی و خط مشی فرصت دوم: تاثیر ناامنی ورشکستگی در بازسازی کسب و کار - اشپرینگر 2018

Abstract

This paper deals with a topic of common concern to China, Europe and the United States: the negative effects of bankruptcy stigma on the second chance (fresh start) policy encouraging restructuring of businesses as an alternative to their liquidation. In most Continental European civil law systems, for example, business restructurings are still only aspirations rather than reality. This is to a great extent due to the ubiquity of intense bankruptcy stigma as a consequence of what, for example, creditors as well as the directors and officers of the bankrupt debtor avoid participating in restructuring proceedings. The resulting dominance of liquidations is perceived as a competitive disadvantage both for China and Europe compared to the United States that possesses the top model enshrined in Chapter 11 of the US Bankruptcy Code. It was for these practical reasons that the second chance policy was given clear priority by the European Union as best expressed in the Commission Recommendation of 12 March 2014 on a New Approach to Business Failure and Insolvency. Similar policy shift characterizes the 2007 Enterprise Insolvency Law of the People’s Republic of China as visible from Chapter 8 on reorganisation and Chapter 9 on compositions (workouts). While bankruptcy stigma is present also in the United States, its effects are the least ‘‘biting’’ in this country and are an issue primarily in the context of consumer-bankruptcies. In light of the above, this article’s main claim is that without proper understanding and acknowledging the impact of bankruptcy stigma, hardly could lawmakers’ efforts aimed at forging a legal environment that would incentivize restructurings of financially distressed businesses yield success. Although some research on the topic is available, it tends to be focused on consumer bankruptcies only. A comprehensive, empirically based, interdisciplinary scrutiny of the impact of stigma on business reorganisations is still lacking just like a ‘‘handbook’’ for combating the bankruptcy stigma. This article attempts to open the doors to this new inter-disciplinary area of law with the tools of comparative law. Besides canvassing the pertaining scholarship’s hereinbefore achievements, the paper extends also to such so far neglected niches of the globe as China and the post-socialist countries of Central and Eastern Europe.

6 Conclusions and implications

6.1 The theoretical account: facts and aspirations

Notwithstanding the dilemmas and the divergences that persist among the jurisdictions covered herein, a few conclusions lend to be formulated from the above elaboration. On a scholarly, theoretical front, these seem to be the most prominent ones. First, it is a fact that the fresh start-based approach (or second chance philosophy) to bankruptcy law is the first ranking priority for numerous bankruptcy laws now at the outset of the twenty-first century, from the European Union, its Member States to China. As an introduction of such a new system presumes a major paradigm change going considerably beyond mere passage of new laws, the achievements cannot be but modest in the short run. Second, as the nature of consumer and business bankruptcies differs significantly, the corollary problems that need to be addressed in the process of introducing a fresh start-based law are as well distinct. This notwithstanding that there is some overlap, too. It is of relevance as well that the interest in, and consequently the hereinbefore reform results, differ significantly with respect to the two segments of bankruptcy laws as well. Third, it is a fact that more and more jurisdictions recognize the legitimacy of providing ‘honest but unfortunate’ individuals (consumer debtors) with fresh start. The new consumer bankruptcy laws, however, do not follow a single pattern, rather they tend to meaningfully diverge. Although US law is one of the models that is advisable to be consulted in this domain as well by those who would like to learn from best globally available practices, it is far from being a success story.