Papers Category:Legal Papers
- Economic Law Papers
Post Time:2014-2-24 11:52:00
Abstracts of the Enterprise Bankruptcy Law 'under the bankruptcy administrator of positive significance, but there are also some conflict with the property law system. Modify and improve the bankruptcy administrator, national legislation should learn from the common law, the creation of a temporary administrator system for different bankruptcy proceedings for interim management and administrators to set different rights and obligations; Change the time of generation of the Manager for the declaration of bankruptcy ; the provisions If you do not have to declare conditions, temporary administrator shall complete the transfer and the debtor.
Paper Keywords bankruptcy administrator perfect
June 1, 2007 implementation of the Enterprise Bankruptcy Law of the People's Republic of China (hereinafter referred to as the 'Enterprise Bankruptcy Law') established by the bankruptcy administrator, in the process of corporate bankruptcy practice play an active role to prevent debtors from transfer of assets, cheap free disposal of assets, destroyed books, and other damage to the interests of the creditors behavior of the system, however, there are some conflict with the relevant system of property law. This paper by contrast with the bankruptcy administrator system of common law countries on the basis of analysis of bankruptcy and liquidation, rehabilitation and reconciliation declaration shortcomings in the procedures before the bankruptcy administrator, clearly the nature of the insolvency administrator and responsibilities, a complete set of bankruptcy the observations and recommendations of the administrator system.
The establishment of a bankruptcy administrator
(A) the concept of the insolvency administrator
The title of the insolvency administrator in different countries, civil law countries generally known as insolvency administrator, common law countries, known as the trustee in bankruptcy, Japan called the Official Financial. More common understanding of the concept of an insolvency administrator: the insolvency administrator refers to the declaration of bankruptcy, the bankrupt enterprises to take full control, and is responsible for the cleanup of the property of the bankrupt, custody, valuation, processing and distribution of specialized agency of the liquidation or personal. Broad and narrow sense of the insolvency administrator, the insolvency administrator in a narrow sense refers to specialized institutions or individuals specializing in the bankruptcy liquidation affairs; generalized insolvency administrator is responsible for both bankruptcy liquidation Affairs, responsible for the bankruptcy reorganization and reconciliation procedures in the management of affairs. China's Enterprise Bankruptcy Law does not define the concept of the insolvency administrator, but the bankruptcy and liquidation of the Act, the manager of bankruptcy reorganization and reconciliation are collectively referred to as the insolvency administrator, you can see China's 'Enterprise Bankruptcy Law' The concept of generalized insolvency administrator.
(B) generation of the insolvency administrator
Insolvency administrator generation Throughout all the legislation, the insolvency administrator generated mainly in three ways: (1) designated by the court.
Court-appointed country, the Court dominant position in the insolvency proceedings, the insolvency administrator elected vested with independent judicial power, any subject, including a meeting of creditors have no right to interfere, if not satisfied with, can only raise objections, and can not be separately elected. Japan, South Korea, Italy, France, the cases of such legislation. (2) to the creditors' meeting elected the principle of the court and other agencies, elected as a supplement. U.S. Federal Bankruptcy Code in 1978 that the this Legislative cases, in accordance with the Code, the insolvency administrator is elected by the creditors 'meeting, only the creditors' meeting is not elected, or elected to resign in the death, according to the needs of the case, was elected by the federal trustee or elected by the interim trustee appointed insolvency administrator. (3) the court elected to the principle of the creditors' meeting elected as a supplement. In Taiwan, China the Bankruptcy and Germany new bankruptcy law that cases of this legislation. China's Enterprise Bankruptcy Law 'Article 22 provides:' manager designated by the People's Court of the creditors' meeting that the manager can not be in accordance with the law, impartial execution of duties or other duties incapable circumstances, you can apply to court to be replaced. 'Thus visible is the first legislation of our manager designated by the People's Court, the creditors' meeting only the right to dissent, but whether to replace, still the people's court decision. In China, the People's Court specified, the legal basis of the manager.
Insolvency administrator generation
In accordance with the theory of bankruptcy law and international common practice, the insolvency administrator generation depends on the following conditions: (1) a bankruptcy facts.
Bankruptcy facts shall cause bankruptcy legal relations change, elimination of objective facts. Enterprise legal person is unable to repay its debts as they fall due, and the assets are insufficient to pay off all the debts as they fall due, or the apparent lack of solvency in accordance with the description of the Enterprise Bankruptcy Law, bankruptcy facts. When an enterprise legal person with one of the above conditions, the creditors, the debtor or related parties will be able to apply to the people's court for bankruptcy liquidation, bankruptcy reorganization or bankruptcy settlement. (2) People's Court ruled to declare bankruptcy and liquidation, bankruptcy reorganization or bankruptcy settlement.
Enterprise legal person is convicted of declaring bankruptcy liquidation, bankruptcy reorganization or bankruptcy settlement, bankruptcy legal relationship established starting, the identity of the subject and the inter-relationship within the framework of a qualitative change. If the debtor is no longer a civil law sense of the ordinary debtor into bankruptcy; creditors are no longer ordinary creditors in the civil law sense of the the statutory tolerance and understanding attitude held by the bankrupt's creditors, the exercise of their rights depends on arrangements of the insolvency administrator under the supervision of the People's Court ordered unity; ownership of the property of the debtor is no longer fully and completely enjoyed by the debtor, and in the insolvency administrator under the management of the bankruptcy estate. The relationship between bankruptcy legal relationship established and the main change is the insolvency administrator to take over the bankrupt enterprise management system to protect its affairs.
(C) the insolvency administrator legislative system
The determination of the insolvency administrator is divided into two legislative cases, civil law countries declared doctrine that declared bankruptcy liquidation, reorganization or reconciliation program began at the same time appointed trustee, as the representative of Germany, France and Taiwan of China; common law countries accepted doctrine that is in bankruptcy, restructuring application acceptance at the same time appointed trustee, as the representative of the United Kingdom, the United States. China's Enterprise Bankruptcy Law 'Article 13 provides that:' the people's court accepts an application for bankruptcy, you should specify both the insolvency administrator, we can see that for the determination of the insolvency administrator, China is the accepted doctrine of the common law.
Second, our bankruptcy administrator lack of
(A) The insolvency law regimes and the principle of law, property law system there is a conflict
In accordance with the the insolvency administrator generation in China, the people's court accepts the bankruptcy case, it will also specify the insolvency administrator. The system can effectively prevent the debtor in the bankruptcy liquidation, bankruptcy, reorganization or bankruptcy settlement application is accepted, declaring the previous stage of the asset transferred, low-cost disposal of assets free of charge, destroyed books, and other damage to the interests of the creditors behavior. However, in theory, the People's Court of the review determines that the debtor has the bankruptcy liquidation, reorganization or the terms of settlement and declared bankruptcy legal relations established bankruptcy take effect accordingly, change the identity of the debtor a bankrupt debtor's property conversion the estate. In such conditions, the bankruptcy management personnel have a legal and legal status in the legal sense, be to effectively manage the Nation under bankruptcy proceedings against the bankrupt enterprises in the legal sense of the estate and bankruptcy matters. Speak from the perspective of property law, in the case of bankruptcy, reorganization or reconciliation has not yet been declared, the debtor is not bankrupt, the property was taken over are not yet bankrupt property ownership should continue to be enjoyed by the debtor, the insolvency administrator at this stage to take full control of enterprises and fulfill management responsibilities to a violation of the debtor's property rights. In this case, the bankruptcy administrator and law principle, the conflict between the system of property law is inevitable.
(B) issues related to the withdrawal of applications
Our country is accepted doctrine of the legislation, the admissibility of the case means that the beginning of the insolvency proceedings, the start time of the bankruptcy proceedings in the strict sense of the differences. When the bankruptcy case does not meet the declared conditions or the parties withdraw their applications, the declaration of bankruptcy procedures can not of course be started. China's 'Enterprise Bankruptcy Law provides for the rejection of the application, namely: the admissibility of the case, the people's court upon examination that the debtor does not meet the conditions of bankruptcy, should the court rejected the application, but does not provide the cause of the withdrawal of the application by the insolvency administrator what should filed or is filed by the debtor, creditors, and if one or both parties proposed to withdraw the application, the people's court how can it deal.
(C) when the enterprise legal review with bankruptcy and liquidation, reorganization or the terms of settlement, the manager has taken over the debtor's business, how the handover, the lack of institutional arrangements
Bankruptcy case acceptance does not mean necessarily have the bankruptcy conditions, of course, will be declared bankruptcy liquidation, reorganization or conciliation procedure. A very likely scenario is that the People's Court review of business entity does not have the bankruptcy conditions of the Enterprise Bankruptcy Law 'when this happens, the court should have ruled dismissed provisions, the insolvency administrator has taken over the debtor's assets and affairs did not make arrangements for how to dispose of. In accordance with the logic of the Enterprise Bankruptcy Law, the application review stage seems to be no difference between the stage with the declaration of bankruptcy. Such a system set does not match the reality. Judicial practice how to deal with the face of these problems, the lack of legal basis.
Third, our insolvency administrator Perfection
In response to these problems, I propose to make changes and improve China's Enterprise Bankruptcy Law 'from the following areas:
(A) the creation of a temporary administrator system
The insolvency administrator generation in China learn is the accepted doctrine of the common law countries, but in view of the conflict of the legal system, common law countries at the same time to establish a temporary administrator system administrator system two systems, including the temporary administrator system is after accepting the application for bankruptcy liquidation, reorganization or settlement, before the declaration stage, set up to solve the the manager identity awkward and uncertain state. The so-called temporary administrator is the specialized agencies or of personal bankruptcy case acceptance, declaring interim receiver of the debtor's business, to manage the debtor's assets and affairs of the inventory. UK temporary administrator called the official receiver, the United States known as the temporary administrator interim insolvency trustee. Common law countries that declared bankruptcy case acceptance, although the company has not been declared bankrupt, but to prevent the debtor to increase debt and reduce assets, damage to the interests of creditors, the debtor's business and its assets, affairs temporary transfer of temporary administrator management, to be formally declared, re-appointed trustee, bankruptcy and insolvency assets, affairs are managed by the insolvency administrator. Provides an institutional basis for such a system designed to reasonable existence as well as the interim administration of the temporary administrator rights and obligations during the set, and also to create the conditions for the handover of the work of the temporary administrator and the insolvency administrator.
By analyzing the bankruptcy administrator defects, the experience of the common law countries, I believe that China's Enterprise Bankruptcy Law 'it is necessary to declare bankruptcy liquidation, reorganization or settle the case after accepting the previous stage to set up temporary administrator, the debtor assets and affairs management. Thus, on the one hand can reduce the system of property law and insolvency law regimes conflict, on the other hand, in chronological order with the debtor's legal position to consider: an enterprise legal person going bankrupt is generally divided into three different stages, different stages of the debtor's legal status has difference. The first stage is a bankruptcy case before acceptance stage, the stage or does not start petitioning for bankruptcy, or having applied the Court has not yet decided whether to accept national jurisdictions have not yet entered the field of corporate jurisdiction, therefore, the behavior of the debtor is free, will be independent. The second stage, the bankruptcy and liquidation, reorganization or settlement after accepting the case before the declaration stage, the stage is the debtor from the freedom of movement, will separate admissibility of the previous stage to the bankruptcy and liquidation, reorganization or reconciliation declaration phase of the transition period, the Department of the People's Court debtor meets the bankruptcy liquidation, reorganization, the terms of settlement for the review period of the review. This stage, although not officially declare the debtor bankrupt, but know to prevent debtors from bankruptcy, the trustee, damage the interests of creditors, in accordance with the law to safeguard the smooth progress of the People's Court review, should moderate the behavior of the debtor's supervision and management. The third stage is the bankruptcy and liquidation, restructuring or settlement after the announcement stage, this stage of bankruptcy effect has occurred, it should be by the manager of the insolvency and bankruptcy and property management.
Declared bankruptcy liquidation, reorganization or settle the case after accepting the previous stage has distinguished from the other two phases of the distinct transition characteristics, the characteristics of the decision, the debtor in this stage of the exercise of the rights is different from before receiving the complete freedom, but also from tantamount to accepting the do not cares declared completely take over, but moderately limited and moderate tolerance; management of the debtor this stage, we can not, can not, such as the declaration of the formal, strictly taken over. Should learn from the accepted system of the temporary administrator of the capitalist countries, set up a temporary manager for this phase transition characteristics, to assist the court to review whether the debtor with bankruptcy liquidation, reorganization, the terms of settlement, and in this particular stage, to take up temporary on debtor moderate supervision and management responsibilities to balance and safeguard the interests of all parties, to create favorable conditions for the next phase of work carried out. It should be noted that, in accordance with the provisions of the Enterprise Bankruptcy Law ', whether the applicant has the reforming conditions review the duties and rights of the people's court, the insolvency administrator involved in this review, still need to research and demonstration.
For these reasons, it is recommended that the increase in China's 'Enterprise Bankruptcy Law' states: the temporary administrator designated by the People's Court. People's Court accepted the bankruptcy and liquidation, reorganization or settlement cases to specify the temporary administrator. Temporary administrator in the bankruptcy case acceptance, bankruptcy and liquidation, reorganization, reconciliation declaration before the interim receiver of bankrupt enterprises. The provision should be made clear the following: (1) the selection and appointment of the temporary administrator. Temporary administrator of election rights are still exercised by the People's Court, it will give the temporary administrator of the methods of selection and methods of selection of managers consistent, uniform application of the legislation elected by the People's Court, the institutional arrangements do not lead to the temporary administrator confusion and methods of selection of the Manager. (2) temporary administrator elective time during. Temporary administrator of elective time for the people's court accepts the bankruptcy liquidation, reconstruction, reconciliation; during the existence of the admissibility of the case to the bankruptcy liquidation, reconstruction, reconciliation declaration. The system is designed to be the perfect convergence of the administrator system offers the possibility. (3) should reflect the temporary administrator to take over the debtor's affairs during the transition phase transition. This is closely related to the with temporary administrator nature of their commitments transaction stage, in line with legal and internationally accepted mode of operation of the Manager.
Before the formal change of the Enterprise Bankruptcy Law, the bankruptcy practice at this stage of work should be treated differently, for example, the People's Court after the appointment of an administrator, manager responsibilities exercised should reflect its transitional features an insolvency administrator and The debtor's right to do the double constraint. Specifically, the insolvency administrator in order to maintain the integrity, security for the assets of the debtor, to accept the claims of creditors reporting, register the claims screening mainly to limit the rights of the insolvency administrator to dispose of assets; stressed on the debtor and the insolvency administrator with emphasis on its The obligation to maintain the security and integrity of assets, the people's court without permission assets shall not be disposed of. After the declaration of bankruptcy and liquidation, reconstruction, reconciliation, the duties of the Manager again clear, the extension of the powers to the disposal of assets. Reposted elsewhere in the Research Papers Download http://eng.hi138.com
(B) a clear withdrawal of applications filed and withdrawn their applications are handled Debtor and (or) a creditor to withdraw filed a bankruptcy petition and temporary administrator to withdraw his application to move the meaning there are some differences. Creditors and debtors jointly filed to withdraw the application for bankruptcy, and that the creditor and the debtor reached a certain degree of understanding, based on the principle of the autonomy of the rights of the parties, the people's court may reject the application, you can also take the consent of the applicant to withdraw the application request an end to the bankruptcy application review process. If the withdrawal application is made by the creditor or debtor unilaterally, the request can not be treated the same withdrawal rights in the proceedings, because, during the period under review reflects the public authority intervention of the Manager, the rights of the related rights have caused some degrees (sometimes this effect is very deep). Even if you do not comply with the conditions of bankruptcy, should be dismissed, not simply by the party to whom any. Both creditors and debtors or individually, had no such intention, the motion to dismiss filed by the temporary administrator, the nature and basis is not a right to self-government principles, but the public power of the private rights of an intervention.
After agreement of both parties put forward their own to withdraw the application, if the claim means that the parties to abandon the period under review the impact on their own interests, the people's court for permission from without can not; when only one of the parties put forward to the end of the review process, will make the other party in the rights of the losses suffered by the review stage and not compensate for the impact of the People's Court in accordance with the jurisdiction to intervene and balance; administrator by the end of the program, the insolvency laws on bankruptcy affairs public authority is superior to the spirit of the private rights of a reflect the the lift effect should be better than the effectiveness of one of the parties brought. Temporary administrator in the filed of application of the end of the program, it should be on how to eliminate the period under review the changing relationship of the various legal the appropriate arrangements recommendations People's Court during the ruling must be considered the recommendation of the Manager.
(C) specified declared bankrupt condition, the temporary administrator shall promptly complete the transfer and the debtor does not have
Temporary administrator before the declaration stage as bankruptcy and liquidation, reconstruction, reconciliation, interim receiver of the debtor and the debtor's affairs management body, upon examination, the debtor does not have the bankruptcy liquidation, reorganization or the terms of settlement at the end of its historic mission. In such a situation, the Manager no longer produce the necessary. Recommendations Enterprise Bankruptcy Law 'should be clearly defined to the People's Court deems that the debtor does not have the bankruptcy liquidation, reconstruction, reconciliation, temporary administrator shall, in a timely manner under the supervision of the People's Court and the debtor to complete the transfer.
(D) Change Manager generation time is declared bankrupt
Generation of the Manager of the Enterprise Bankruptcy Law 'provisions amended as follows: People's Court declared bankrupt appointment of an administrator, temporary administrator shall promptly transfer of bankrupt enterprises and management services to the Manager. Upon review, the temporary administrator may be designated as the administrator. This provision reflects the three meanings: (1) the insolvency administrator elective subject and elective time.
The elected body of the insolvency administrator is the people's courts, the election is declared bankrupt. Specified in the declaration of bankruptcy administrator, temporary administrator from time relative convergence inherited from the duties against the basic theory of the insolvency administrator. (2) Following a review of the debtor to comply with the bankruptcy liquidation, the basic conditions of restructuring or settlement by the temporary administrator handover to the Manager of bankrupt enterprises and business matters, and continuation of the bankruptcy proceedings. (3) The temporary administrator and manager are both broad Manager category, the temporary administrators and managers should have the same qualifications and conditions of employment, temporary administrator does not exist can not be served as administrator of prohibitions. Therefore, objectively, the temporary managers should have served as managers; another a long time due to the temporary administrator in contact with the debtor, the debtor and its affairs have a more in-depth understanding of the subjective willingness to have served as managers. The above objective and subjective conditions for temporary administrators as managers become possible.
(E) With regard to the different types of bankruptcy proceedings for interim management and administrators to set different rights and obligations
For managers, the China Enterprise Bankruptcy Law 'bankruptcy liquidation, restructuring and reconciliation program without distinction, shall be uniform regulations. However, bankruptcy and liquidation, reorganization and reconciliation, after all, the three diverse nature of the program, managers bear different responsibilities in different programs, such as bankruptcy and liquidation proceedings, the insolvency administrator shoulder equitable settlement and ensure that the interests of the creditors to maximize mission, the program requires managers with high finance, accounting, quality and ability; bankruptcy reorganization proceedings, the managers should be back to life the power of the spirit of the debtor, the debtor still salvage the operation and management of the program test manager capability. It is recommended that the distinction between the duties and rights of managers in different programs. Divided clarify the duties and rights of the bankruptcy liquidation, restructuring and reconciliation procedures on the basis of temporary administrators and managers shoulder the different mission responsibilities and rights.
Before the declaration stage, due to the bankruptcy and liquidation, reorganization or settlement not enter into force, the civil status of the debtor has not been transformed, the bankruptcy legal relationship has not been established for temporary administrator should set different from the duties and powers of an administrator, this the duties of the Interim managers should be more important than preventing the debtor to reduce assets and increase liabilities, to assist the court focused on whether the debtor has bankruptcy and liquidation, reorganization or the terms of settlement review. Bankruptcy liquidation, reorganization or reconciliation declaration has been generated due to the established legal fact, the legal relationship has been established, it should be at different stages of the specific circumstances set different rights and responsibilities, the Manager. Reposted elsewhere in the Research Papers Download http://eng.hi138.com