Abstract: the reorganization system has played an important role in clearing debts and realizing the regeneration of troubled enterprises, and has been evolving in response to economic and social development. Socialism with Chinese characteristics has entered a new era, so it is necessary to refine the theory of China's reform and judicial practice. Under the background of the global political philosophy trend, China's national governance program and the "cooperative" methodology of civil law, and on the "intersection of freedom and coercion", this perspective of institutional function evolution should be extended. This paper looks forward to the function of the reorganization system in terms of the cut-off of the financial risk transmission mechanism, the enhancement of the Marginal Diminishing cooperation willingness of the creditor group, the construction of the "regional off-site capital market" under the judicial path, and ponders on the major issue of "how can the common cooperation among social individuals be realized", and devotes itself to giving play to its comprehensive governance function, promoting its institutional change, spiritual transformation System reconstruction and other internal legal progress and changes.
Key words: reorganization; Debt liquidation; Comprehensive management; Cooperationism; Legal development
1、 Questions raised
Reorganization refers to the legal system of forcing business restructuring and debt liquidation for enterprises that may or have been bankrupt but have the hope of rescue through the coordination of the interests of the stakeholders of all parties, so as to avoid bankruptcy and obtain rehabilitation [[Wang Chen (1981 -), male, Anhui Anqing, master of engineering, Liaoning Tongfang law firm, senior partner, 1388983368, refineye@126.com ；
[] Wang Xinxin: Principles and cases of bankruptcy law, China Renmin University Press, 2011 edition, P. 202.]. Throughout the historical evolution of China's bankruptcy law, the 1986 bankruptcy law attaches importance to the enterprise exit mechanism under the planned economy, puts the reform of state-owned enterprises in the first place, and puts the protection of creditors' interests in the secondary position. It cannot be called a real commercial law, and its political and temporary functions are more than one [[[]] Li Yongjun: reaffirming the spirit of private law of the bankruptcy law, political and Law Forum (Journal of China University of political science and law), 2002, issue 3.]]. The current bankruptcy legislation fully reflects the market driven private rights led bankruptcy operation system and restricts the involvement of public power in the bankruptcy procedure, "Its function not only points to the value that the creditor's interests are superior to the debt relief, and the creditor's and debtor's interests are superior to the overall adjustment of the society, but also forms a linkage between its different objectives based on the realization of the rights and interests of the parties" [[[]] Qi Ming: Bankruptcy Law: basic principles and legislative norms, Huazhong University of science and Technology Press, 2013 edition, P. 21]. The function of reorganization refers to the external effect of the reorganization system in the process of rescuing troubled enterprises, which is reflected in the adjustment and balance of the rights and interests of creditors, debtors and investors in individual cases, as well as the systematic impact on economic life in the whole society.
The reorganization system is a great creation in the field of bankruptcy. It originated from the bankruptcy of American Railway Companies in the 19th century. Under the social background of the bankruptcy of a large number of small-scale railway enterprises, the court appointed a receiver of the bankrupt's property according to equity to manage the bankrupt's property, creating a new legal system, And it is specifically applicable to the reorganization of the earliest large-scale companies in the United States [[[] [the world of debt: the history of American Bankruptcy Law], translated by Zhao Binghao, China Legal Publishing House, 2010 edition, pp. 66-67]. Reorganization system itself is the product of social changes and economic development. Understanding the function of reorganization system in China is not only a major basic theoretical issue, but also a direct, profound and critical guiding role for practice.
Under the background of China's reform and opening-up for more than 40 years, social mobility has been greatly enhanced, the scope of economic activities has broken through the original regional restrictions, the social division of labor has been increasingly refined, and the social risks have been increasing. These profound social changes must be taken into consideration by the law. The report of the 19th National Congress of the Communist Party of China pointed out that "socialism with Chinese characteristics has entered a new era, and the main social contradictions in China have been transformed into contradictions between the people's growing needs for a better life and unbalanced and inadequate development." This puts forward a brand-new topic for the theoretical research of the reorganization system. It requires us to more deeply grasp the social development trend, the change of legal concepts and the evolution of legal functions. On this basis, we should understand "what the reorganization system should do" and "what kind of reorganization system China needs", and guide practice with theory to better play the role of the reorganization system in promoting the modernization of national governance.
2、 An analysis of the existing functions of China's reorganization system
The function in social science refers to "the contribution of a certain activity that is a part of the overall activity to the overall activity. The reason why an activity continues is because it is necessary for the overall survival." [[] [American] J. Wilson: introduction to functional analysis, foreign social sciences, 1986, issue 10]] law is functional rather than symbolic [[] [American] Richard A. Posner: issues of jurisprudence, translated by Su Li, China University of political science and Law Press, 2002 edition, P. 574.], To build a modern society ruled by law, we must emphasize the important position of law in the governance of the country. Only when the public understand what the functions of law are, can the public apply the law well. The degree of influence of law on society depends on the state and result of the function of law to a certain extent. As long as the law and society are connected, the function of law is an important issue that must be well studied [[[]] Fu Zitang: on the function of law, China University of political science and Law Press, 1999 edition, pp. 5-6]. China's enterprise bankruptcy law follows the concept of interest balance in the legislative concept, and comprehensively balances the interests of creditors and debtors. In particular, the reorganization system focuses on debt liquidation, and has produced positive effects in the aspects of creditor group autonomy, investor rights and interests adjustment, market price mechanism play, and social wealth marginal benefits.
（1） Debt clearing function at the micro level
Some scholars pointed out that the basic function of the bankruptcy law is to "clear up the relationship between creditor's rights and debts", and to "solve the problem of creditor's rights and debts at the micro level" to realize the return of the bankruptcy law to private law [[] Qi Ming: Bankruptcy Law: basic principles and legislative norms, Huazhong University of science and Technology Press, 2013 edition, page 24.] This is also a summary of the existing functions of the reorganization system. Through bankruptcy reorganization, the debtor retained the qualification of enterprise subject, cleared up the external debt, and got rid of the shackles of historical problems on future development, and gained a rebirth. Of course, this kind of debt liquidation occurs at the micro level, and the debtor's debt liquidation is at the expense of the creditor's interest reduction, and this kind of debt liquidation at the micro level and in individual cases, the creditor group pays for the failure of the debtor, which is the "transfer payment" and the "secondary distribution" of social wealth from the perspective of private law rather than public finance [[] the three distribution theory refers to the income distribution under the market economy, including three distributions: the first is the distribution by the market according to the principle of efficiency; the second is the redistribution by the government according to the principle of giving consideration to fairness and efficiency and focusing on the principle of fairness, through the income and expenditure of Taxation and social security expenditure; the third is the distribution by individual voluntary donation under the promotion of moral force. The third is The mode of distribution was first proposed by Professor Li Yining, a famous economist in China, in his book "stock system and modern market economy" published in 1994. From the perspective of results, this paper believes that the reduction of creditors' interests and the liquidation of debtors' debts by the reorganization system is to balance the interests of all parties from the perspective of private law (bankruptcy law) rather than public law (tax law), and objectively realize the secondary distribution of social wealth.]]
（2） The consensus rebuilding function of creditor groups
The reorganization system promotes the creditors who are different in nature and unfamiliar with each other to rebuild consensus through the group voting of creditors and the establishment of corresponding voting rules. The "creditors' meeting" composed of creditors is not a living body. Like the "shareholders' meeting" of a joint-stock company, it is a fictitious subject determined by law. Article 84 of China's enterprise bankruptcy law stipulates: "the people's court shall convene a creditors' meeting within 30 days from the date of receiving the draft reorganization plan to vote on the draft reorganization plan. If more than half of the creditors of the same voting group present at the meeting agree to the draft reorganization plan, and the amount of creditor's rights represented by them accounts for more than two-thirds of the total amount of creditor's rights of the group, the group shall pass the draft reorganization plan." Article 86 stipulates that "when all voting groups pass the draft reorganization plan, the reorganization plan shall be deemed to be passed."
Continuing the above analogy between the "group" of the creditors' meeting and the "group" of the shareholders' meeting of the joint stock company, from the perspective of private law, "A benign internal order must contain self denial factors. Its core feature is to encourage group members to participate in the process of group autonomy, and allow group members to respond to the new environment through innovative behaviors without interruption, so as to change the existing group order and overcome various difficulties and difficulties encountered by the group in the process of operation." [[] Cai Lidong, et al: the Chinese logic of the group legal system, Law Press, 2018 edition, P. 197.]]
（3） Creditor's rights protection function superior to bankruptcy liquidation
The bankruptcy liquidation system is based on the single value of the separation and disposal of the debtor's (bankrupt enterprise's) property. The bankruptcy reorganization system takes into account the overall value of the debtor's assets, the value of the debtor's "shell resources" and the value of the debtor's intangible resources, and attaches importance to the value of the enterprise's continued operation. Therefore, the creditors' repayment in the reorganization is greater than the liquidation, and the creditors' interests in the reorganization are improved, Creditor's rights are protected. However, the "improvement" mentioned here sometimes becomes a form. In judicial practice, the liquidation value as the "reference system" of reorganization value is sometimes just a number game, that is, the "liquidation value" is generally the evaluation value of the debtor's property according to a certain method. Some scholars put forward that "it is extremely important to establish and improve the property evaluation mechanism led by the market mechanism" [[] Qi Ming: Bankruptcy Law: basic principles and legislative norms, Huazhong University of science and Technology Press, 2013 edition, page 23.] Some scholars have misinterpreted the reorganization system by using the "liquidation value standard" in the compulsory adjudication of the reorganization plan of listed companies. "The liquidation value is only the bottom line for the protection of creditors, and creditors have the right to participate in the distribution of the remaining operating value of the reorganization based on their creditor's rights." [[] Wang zuofan equity principle of mandatory adjudication of creditors in the reorganization of listed companies, published in politics and law, 2013, issue 2.]]
（4） Transaction cost saving function of enterprise regeneration
Transaction cost refers to the cost to reach a transaction, and also refers to the total time and currency cost spent in the process of trading. Including the costs incurred in the dissemination of information, advertising, transportation related to the market, as well as the negotiation, negotiation, signing and supervision of contract execution. This concept was first introduced into economic analysis by new institutional economics in addition to traditional production costs. In the article "the nature of enterprises", Coase believes that the transaction cost is "the cost of organizing production through the price mechanism, and the most obvious cost is the cost of finding the relative price", and "the cost of negotiation and signing of each transaction in the market" must also be considered [[] [US] Ronald h. Coase: the nature of enterprises (1937), published in [US] Oliver E. Williamson and other editors: the nature of enterprises, translated by Yao Haixin and Xing Yuanyuan, commercial press, 2010 edition, page 25.] From the perspective of new institutional economics, the transaction cost of reorganization system can be understood as "the cost of exchanging enterprise ownership".
From the perspective of contract analysis on the reorganization system, "the company in the reorganization is essentially a contract bundle composed of a series of enterprises" [[[]] Wang zuofe: Contract Analysis of the company reorganization system, China University of political science and Law Press, 2013 edition, page 6.], The core of this contract problem is to design an acceptable allocation mechanism of interests to distribute the income generated by the "general execution procedure" of reorganization, maintain the continuous operation advantage of the debtor's enterprise, regenerate the debtor's enterprise, compensate the creditors whose interests have been damaged, and make the draft reorganization plan obtain the consent or unanimous consent of the majority of creditors. Therefore, the reorganization and regeneration of the enterprise is the saving of transaction costs, which does not include the tax costs that may be generated compared with the clearing house, thus forming a "positive externality" for creditors, debtors, reorganization investors and other parties, benefiting many parties.
（5） Optimized allocation function of market element resources
The market mechanism allocates resources through price, supply and demand, competition, etc. according to price changes caused by changes in market demand and supply. On April 9, 2020, the CPC Central Committee and the State Council issued the opinions on building a more perfect system and mechanism for market-oriented allocation of factors, which proposed the reform direction and specific measures in the five factor areas of land, labor, capital, technology and data, and deployed and improved the factor price formation mechanism and market operation mechanism. The factor market system is composed of the factor right confirmation system, the factor trading unit, the factor pricing mechanism, the factor trading market, the factor market supervision system, and the innovation and opening of the factor market [[] Yang Changcheng: promoting the marketization of factor allocation is a key step in continuing to deepen reform, China business daily, April 21, 2020, page a11, https://www.yicai.com/news/100602516.html , visit time: July 23, 2020.]
The reorganization system has played a very positive role in introducing investors, introducing competition mechanisms, activating capital transactions, revitalizing existing resources, and realizing re employment for troubled enterprises. In particular, the Supreme People's court has established the "national enterprise bankruptcy reorganization case information network", and platforms such as Alibaba and jd.com have also set up special sections for bankruptcy business. Information release and transaction under bankruptcy cases are very active, Almost gave birth to a specific industry segment. However, in reality, many factor markets are still incomplete. Some factor prices (mainly the liquidation value) in the restructuring are assessed by the evaluation institutions, which are highly technical and artificial. It is difficult to establish an objective and direct factor pricing mechanism in a short time, and it is more difficult to price factors such as qualification, business, technology and data. The market also has many defects such as "incomplete market" [[[] [US] Charles Wolff: market or government - weighing two imperfect choices, translated by Yao Xu, China Development Press, 1994, pp. 15-26.], The economic order is also affected by the limited rationality and irrational mental models [[[]] Qing Zhiqiong: limited rationality, mental cost and economic order, Economic Science Press, 2006 edition, pp. 2-3.], We must avoid the myth and blind worship of marketization.
（6） Tolerance of corporate failure: the shaping function of legal culture
The legislative policy of the bankruptcy law has a subtle impact on social concepts [[] Qi Ming: Bankruptcy Law: basic principles and legislative norms, Huazhong University of science and Technology Press, 2013 edition, page 27.] China's "enterprise bankruptcy law" has been promulgated for more than ten years, and the situation that bankruptcy is regarded as an ignominious thing and "talking about breaking the law turns pale" has been greatly improved. Social consciousness and social existence cannot be synchronized. However, for a long time, China has lacked the cultural soil for tolerating failure. Heroes are judged by success or failure. Some entrepreneurs who are legally operated but are in trouble are also called "Laolai". This also objectively attacks the innovative spirit of tolerating failure. Culture