On the insolvency administrator On the Bankruptcy Trustee System

Document Sample
On the insolvency administrator On the Bankruptcy Trustee System Powered By Docstoc
					On the insolvency administrator On the Bankruptcy Trustee System

 On the Bankruptcy Trustee System


 abstract insolvency legislation in the country known as the "Bankruptcy
liquidation team, "after the bankruptcy declaration is established by law
in the courts under the command and supervision of bankrupt enterprises
to take full control and custody of the bankruptcy property, clearing,
valuation and distribution, Zongguan bankruptcy liquidation services
specialized agencies, department bankruptcy liquidation the subject of
insolvency proceedings is the most important organization.
 China promulgated the "Bankruptcy Law" and relevant judicial
interpretations formed a socialist system under the conditions of the
insolvency administrator, on the economic system and market economy play
an important role in promoting. However, with the deepening of China's
market economy development, the existing insolvency system have gradually
shown their limitations. In the development of the new bankruptcy law
should be added to the provisional insolvency receiver system, the
people's court accepts the bankruptcy case, we shall designate an interim
insolvency to take over bankrupt companies, has overall responsibility
for the management and operation of the debtor's property, affairs, until
the bankruptcy proceedings by way of reconciliation, the end of
consolidation , or the court declare the debtor bankrupt liquidation
group produced this year. Insolvency legislation should also provide for
a general obligation of the rules, that should make "good manager" of the
obligations, the performance of their duties of diligence, should his
identity as a bankruptcy liquidator and their career, status, abilities,
knowledge and so adapt, and clearly violate the provisions of the
liquidation team members "a good administrator duties" should bear legal
responsibility.

 legal sense of the "bankruptcy" means dealing with economic bankruptcy
as a debt to settle the legal system, that is when the debtor is unable
to discharge the debt, enforced by the court all the property, fair
settlement of the creditors legal system. Bankruptcy legislation is the
economic and social goods important part of the legal system.
 country in order to ensure the impartiality of the proceedings be
conducted to improve the efficiency of liquidation, has promulgated the
"Bankruptcy Law", "Civil Law" and "Trial of Enterprise Bankruptcy Cases
on the provisions of a number of issues" and other laws and regulations,
initially formed Under the socialist market economy system, the
bankruptcy administrator, on the economic system and market economy has
played an important role in promoting.
 China "Bankruptcy Law" stipulates that declared bankruptcy court, it
shall specify the professionals from the relevant government departments
set up liquidation group, the specific property of the custody of the
bankruptcy, liquidation, valuation, processing and distribution issues,
and necessary according to the law of civil activities. Once the
determination to declare bankruptcy, the debtor's business or loss of
corporate authority property management, disposition, bankrupt
enterprises and the management of all property transferred by the
bankruptcy liquidation team to take over.
 corporate non-state ownership enterprises bankruptcy case, in accordance
with the "Code of Civil Procedure," Article 201 of the people's court of
the relevant organs and personnel to establish a liquidation
organization.
 country's "Bankruptcy Law" in bankruptcy cases accepted as the beginning
of bankruptcy proceedings and provides that declared bankruptcy
liquidation after the group set up within 15 days. However, after the
bankruptcy case acceptance to before the establishment of the liquidation
group, there establish temporary insolvency receiver system is necessary.
According to the "Bankruptcy Law" and relevant judicial interpretations
of the provisions of bankruptcy liquidation bankruptcy in the performance
of management, change prices and distribution duties, courts should be
responsible and report on the work of supervision. Liquidation team
should also attend the meeting of creditors and subject to its
supervision, the liquidation group decisions and inconsistent with the
interests of creditors, the creditors may apply to the people's court
ruling revoked.
 1, the insolvency administrator of the concepts and origins of
 declaration of bankruptcy after the insolvency administrator is
established by law, the court fully took over the command and supervision
of the bankruptcy estate business and is responsible for the custody,
clearing, valuation, processing and distribution mains liquidation
services specialized agencies.
 bankruptcy legislation in China, there is no concept of the insolvency
administrator, but the concept of using the bankruptcy liquidation group,
its functions and the insolvency administrator equivalent, but there are
some differences in the concept. Group stressed that the activities of
the liquidation liquidation, and other cases of corporate liquidation
activities indistinguishable, while the bankruptcy administrator
emphasized the functions of the administration of the estate, with the
extent of the actual role of bankruptcy is more consistent. Therefore,
the concept of using the bankruptcy administrator, a more accurate
number. National insolvency legislation or Commercial Code, the
insolvency administrator of the system there are corresponding provisions
for its system of origin can be traced back to Roman times. At that time,
prevailing creditor self-help doctrine. After winning the creditors can
be achieved through the implementation of their rights on their own.
Later, to the abandonment of property assets as the main way to establish
and implement the system gradually be developed. Judge Ke Yi creditor's
request to deliver to financial management order allowing creditors to
hold the debtor's total wealth. The judge declared possession of property
of the debtor pay the creditor 30 days, the creditor may apply to the
court elected administrator of property, the auction of his property as a
special leader. However, the fact that since the Court issued to
financial management to allocate the assets of the variation between the
long time, so sometimes by the property manager to take up management
responsibilities. Roman law system of property managers, in fact, the
insolvency administrator or the bankruptcy liquidator system start. After
the Roman era, changing bankruptcy auction for individual sale, its
procedures more complex. Legislative requirements for the selection of
property managers, which is equivalent to the current insolvency
administrator [1]. After that, bankruptcy cases, the courts are vested
rights for the progressive. However, declared bankruptcy after the
administration of the estate and the liquidation of complex heavy, with a
large number of legal and non legal affairs during doping, but not the
court can be handled single-handedly, it is still necessary to establish
a liquidation organization. The development of this system since it
formed a modern insolvency regime.
 bankruptcy proceedings it is the most important organization, specific
management of the affairs in bankruptcy, insolvency proceedings in other
organs or tissue only from the supervision or supporting role. Whether
insolvency proceedings in a fair, equitable and efficient based on the
smooth and end, and closely related to the insolvency administrator.
 2, the insolvency administrator of the legal status of the
 of the bankruptcy administrator's legal status, there are different
points of view, the main foreign insolvency law experts have the
following theory:
, Agents said. The insolvency administrator is on the legal status of a
theory first. In its view, the insolvency administrator is the agent to
others in the name of the exercise of official authority to bankruptcy
proceedings, liquidation procedures are in nature, focusing on bankruptcy
and insolvency creditor relationship between the private settlement.
, Office said. To say that the insolvency proceedings in the law for all
creditors to rely on state enforcement agencies conducted by the bankrupt
enforcement proceedings, the insolvency administrator of the legal status
of the enforcement authority should be seen as similar to the staff of
civil servants, their behavior is a kind of job behavior. However,
according to the general theory of bankruptcy law, procedural law on the
insolvency administrator is a party, such as bankruptcy administrator
have civil servant status, will lead the executive organ of state to
become litigants in bankruptcy proceedings, which clearly goes against
the theory of the implementation of law [2].
, The consortium said. The said that the declaration of the debtor's
property into a bankruptcy liquidation for the purpose of the existence
of an independent property, the bankruptcy administrator is the
personification of the property on behalf of such authorities. By the
insolvency representative said the consortium could that explain the many
laws on bankruptcy law phenomenon, the insolvency administrator on duty
to inflict harm on other people's situations, but also directly to the
estate and the victims bear tort liability. Therefore, it is legal,
except to be representative of the status of their duties, but also to
legal representative of the status of implementation of the functions
[3]. For this reason, the Japan law experts say the most powerful theory,
there are many scholars advocate Germany, United States Bankruptcy Code
expressly provides that the manager is the consortium representative,
China, Taiwan also has many scholars agree with this that [4].
 in China, the liquidation group on the legal status, there are also
differences of opinion, mainly in the following three kinds:
, Liquidation of legal authorities said. To say that after the Enterprise
bankruptcy, liquidation can be a legal person. Bankrupt enterprises to
bankruptcy as the property rights of its foundation with legal
personality, and on this basis the necessary independence of the civil
activities, the state fully the right to pass legislation to set up the
estate based on a kind of legal persons for the purpose of liquidation,
and give the legal authority liquidation liquidation group eligibility.
However, as according to the "Bankruptcy Law" Article 35, as a bankrupt
enterprise the liquidation group to representative have the right to deny
the right of the bankrupt company, which denied their right to exercise,
which is obviously self-contradictory [5] .
, Dual position, said. To say that the liquidation group has a dual
nature, both the court elected to assist the court to liquidate the
implementation of the organization is independent of the civil subject is
the subject of litigation, and could carry out the liquidation
activities. "Double position that" reveals the diversity of the
liquidation group identity, especially the "implementation of the
organization" and "independent civil entities and civil subjects" of the
two distinct features. However, the liquidation group as "the
implementation of organization" and "independent entity", for its
violations and misconduct related to the consequences of the liquidation
group should be held accountable? If responsible, the responsibility of
property come from? If independence is not responsible for their own how
to realize? Recognized its responsibility as the property of the estate,
its property and insolvency or bankruptcy of enterprises in which the
relationship is? These problems can not be said to be a reasonable
explanation.
, Insolvency consortium said. Scholars who advocate this view, formulated
and promulgated in the official New China-breaking legislation, should be
"bankruptcy consortium" concept, the corresponding to give his
independent personality, bankruptcy liquidation team should be
representative of the estate and the bankruptcy administrator that can In
the interest of independence of the insolvency and bankruptcy creditors,
bankruptcy proceedings to ensure fair and reasonable conduct, and it
helps maximize the collection of statutory liquidation group the estate,
the consortium the right to maintain the value of the estate constitutes
a reasonable, in order to fully satisfy creditor solvency requirements.
But the need to be said for the premise that in the new bankruptcy
legislation and the theoretical recognition of the overall collection of
the estate property posed by the dominant position of groups with
personalized, get rid of the property only as a limited right to object
recognition by a number of specific, scattered, individual's bankruptcy
estate consortium consisting of the property has a class personified as a
whole, recognize the collection of the estate from the original owner of
the specific purpose can exist independently of the character value, that
is, the right to object character recognition [6].
 3, the insolvency administrator's selection of
 bankruptcy administrator's selection means there are differences in
foreign legislation. Are elected by the court, such as Japan; are elected
by the meeting of creditors, such as Britain, the United States; also
elected to the Court of the principle of a meeting of creditors be
permitted to be elected, such as Germany. The number of the bankruptcy
administrator, most of the appointment of a person, but also the
appointment of people of.
 bankruptcy administrator for the identity of some countries do not have
special restrictions, while others worked on the conditions of the
insolvency administrator has specific requirements. Such as the UK
Insolvency Act 1986 provides that all persons serving in bankruptcy is
limited in the extent of the law recognizes its qualified personnel, the
conditions for participation in the recognized professional organizations
or have direct application to obtain a business license issued by the
Ministry of personal practice, these groups or for the Institute of
Chartered Accountants or the Bar Association [7]. French insolvency
proceedings by the court administrator of the National Committee from the
list of designated development, and only by those persons to act as
administrator, the court may apply for exchange administrator authority.
At present, the French National insolvency administrator about 500 or so,
and the composition of the insolvency administrator of the guild, the
development of discipline [8].
 with our existing bankruptcy legislation in the form of electing the
members of the liquidation group and identity requirements to the
requirements of different foreign countries. According to the "Bankruptcy
Law" and "the views of insolvency law" requirement, the people's court
shall declare bankruptcy within 15 days from the date of the
establishment of a liquidation team to take over the bankrupt company.
Liquidation group by the courts and at the same level higher people's
government department in charge of the enterprise, government finance,
business administration, planning, auditing, taxation, prices, labor,
personnel departments and relevant professionals in the specified. Once
designated, the relevant units and personnel shall not be an excuse for
shirking or absentee without leave, do not perform their duties because
of special circumstances, the court can be arranged. Leader designated by
the court, the liquidation group may appoint a certain number of
accountants and other staff.
 group of Chinese legislation constitute the liquidation model, mainly
used as the main multi-run enterprise, and the handling of bankruptcy
cases, it involves the interests of all sectors of society did not
consider the officer has the appropriate quality, is suitable for
handling cases which had resulted in many problems. For example, the
person designated can dive into these cases, and with the number of cases
will not affect my work; whether the staff from these departments have
the professional knowledge and skills are familiar with bankruptcy law
knowledge, their how efficient? Liquidation of the objective, fairness
can be guaranteed? Designated group of these officers work during the
liquidation of remuneration should be paid where? Their participation in
the liquidation is simply a matter of obligation to the court? Generated
by a designated officer to take complaints or charges against, an
individual or unit?
 is based on the above issues, some scholars, our way of liquidation
group shall produce to market, specialization. "Head of the liquidation
by the bankruptcy court from registered consulting firms, law firms,
accounting firms, auditing firm of experts designated by the head of the
liquidation group selection, reported People's Court approved" [9 ]. With
the further deepening of China's economic reform and social intermediary
organizations to develop, strengthen, enhance the authority of justice by
the government and relevant departments working group composed of the
bankruptcy liquidation, will be replaced for the intermediary
organization personnel.

 4, the insolvency administrator's responsibilities
 liquidation group established, on completely take over the bankrupt
company, and is responsible for keeping their property clean up,
valuation, distribution, and so on. China's "Bankruptcy Law" section and
other provisions of Article 24,26,35,37,39, for keeping the estate clean
up, valuation, processing and distribution, liquidation group on the
provisions of responsibilities. In addition, the judicial interpretations
have also made a more detailed list, according to bankruptcy legislation
and judicial interpretation of the relevant provisions of the Bankruptcy
liquidation group has the following main responsibilities:
, Take full control of bankrupt enterprises. Specifically include: ¢Ù the
state take over the company's property specification and claims, debt
inventory and other documents; ¢Ú take over the bankrupt enterprises of
all property of the debtor bankrupt companies or financial holding group
can only perform to the liquidation of the debt or the delivery of the
property. The legal representative of the bankrupt enterprises refused to
transfer procedures, the liquidation group may apply for compulsory
transfer; ¢Û group received in liquidation before the transfer of
bankrupt enterprises bear the safekeeping of the legal representative of
the estate account books, documents, materials and seal obligations.
, Custody and clearing business-related property and insolvency.
Including: ¢Ù survey of property of bankrupt enterprises and the business
conditions and the right to bankrupt enterprises were asked about the
legal representative; ¢Ú clean up the property of bankrupt enterprises,
and to keep a record of the property, bankruptcy and legal
representatives of enterprises the responsibility of officers to the
requirements under the liquidation group work, not AWOL; ¢Û the property
and rights to implement the necessary protective measures; ¢Ü begin to
collect the estate, if necessary, litigation or arbitration.
, For the purpose of liquidation, bankrupt companies to continue
operating. "Bankruptcy Law Opinions" Article 43, declared bankruptcy
court ruling, declared bankruptcy since the date of a legally effective,
bankrupt enterprises to stop production from today business activities,
except those necessary to continue production.
, For the conduct of the liquidation activities, may appoint an
accounting firm and other staff ("the views of Bankruptcy Law" Article
51), it should be noted that the liquidation of affairs not only a large
number of accounting and financial knowledge, and focus more on issues
such as rights and obligations arising from the estate, the estate
litigation, priority claim set-off, denied the right to the exercise of
bankruptcy claims and other legal relations, and these legal services,
non-lawyers with specialized knowledge of legal experts can not do.
, Decided to declare bankruptcy discharge or to continue to fulfill the
contract when not fulfilled. "Bankruptcy Law" Article 26 provides that
the bankrupt company did not fulfill the contract, the liquidation group
may decide to release or continue to perform. Liquidation group decided
to cancel the contract, the other for damage to the contract, the amount
of its damages claims as a bankruptcy.
, Request the convening of a meeting of creditors, attend meetings and
meetings of creditors to accept supervision. Degree in bankruptcy, the
creditors shall be decided in case of major problems, the liquidation
group may request the President of the Conference held a meeting of
creditors, and advice on relevant issues, the liquidation group's
decision was contrary to the interests of creditors, the creditor may
apply to court ruling revoked.
, On the estate valuation, processing, and distribution of price changes.
According to bankruptcy legislation and judicial interpretation of the
provision, the liquidation group on the estate should be re-valuation has
been completed for depreciation of fixed assets, residual value should be
revalued price of defective strain deterioration of property, do not
change prices, at cost pricing. Insolvency liquidation of assets of the
enterprise group, you can be in-kind distribution to creditors after
reasonable pricing and also sell sell. Results of the liquidation group
produced under liquidation bankruptcy schedules, balance sheet, and
presentation of a bankruptcy distribution scheme. The program is a
discussion and adoption by the meeting of creditors. People's court ruled
that recognition, the liquidation group shall immediately inform the
creditors of the deadline to receive the property, fails to obtain and
can be deposited. Bankrupt enterprise the liquidation group distribution
of the property, the principle of distribution of money can also be taken
in kind.
, For the end of bankruptcy proceedings, for cancellation of
registration. According to relevant provisions of the bankruptcy property
distribution After the liquidation group shall draw the court ruled that
the insolvency proceedings, bankruptcy proceedings after the end of the
liquidation group shall bankrupt enterprises to the original registration
authority for cancellation of registration, and will promptly inform the
court handling the situation. In addition, the estate is insufficient to
cover the debt in bankruptcy fees and the consortium, the liquidation
group shall apply in time the insolvency proceedings.
 5, the insolvency administrator's duties, remuneration and
accountability
 of bankruptcy legislation is neither general obligations of the clearing
team members the requirements and provisions of law liability for
negligence, nor of the liquidation team and its members paid requirement,
which is foreign to the management of insolvency liquidation services as
paid services, the cost will be paid as a consortium, responsible for
their dereliction of duty far cry from the provisions. Growing number of
cases in the bankruptcy case, the lack of legislation is bound to the
actual handling of the case left too much room for speculation. Clearing
system run inevitable difficulties. Judicial practice in the future, the
liquidation group of market-oriented, professional, paid of and
accountability should be the direction of development.
 list of the current bankruptcy legislation by way of the liquidation
group duty to provide, in line with overseas orders. But the bankruptcy
liquidation group duty cumbersome and Nanjin its details. Thus need to
set its general obligations to increase specification. Theoretically, in
liquidation by a consortium of representative status is established, all
and all acts of bankruptcy set up the consortium, the liquidation group
may carry out. There is a corresponding obligation of the total plan. If,
in the liquidation group and its members perform their duties, should
make "good manager" of the obligations, the performance of their duties
of diligence, should their status as a bankruptcy liquidator, occupation,
status, abilities, knowledge and so to adapt, and clearly violation of
the provisions of the liquidation team members "good manager" should be
liability, breach of this obligation, the consortium or the relevant
interested parties to the bankruptcy caused by damage to the interests of
not only constitute a reason for their dismissal, but also bear the
corresponding liability. The insolvency administrator is considered
representative of the estate and organs. The one hand, the estate has
wasted, stolen, corruption and other acts, according to legal authorities
or legal representative of the legal person shall bear the responsibility
for damages. At this point, the court based on its authority to replace
the insolvency administrator, "the new representative of the estate and
the bankruptcy administrator, the request for damages" [10]. On the other
hand, the insolvency administrator, as the representative of the estate
and organ functions in the implementation of the damage caused to others
by the consortium is liable for the insolvency, bankruptcy administrators
jointly and severally liable.
 bankruptcy matters are handled by time-consuming, heavy responsibility,
the burden of property and there is risk of liability, so the provisions
of national legislation and more bankruptcy administrator have the right
to obtain compensation. Court approved remuneration, according to the
simplified insolvency cases, scale, distribution ratio, the insolvency
administrator, time-consuming effort, and effort, with the industry
standards for payment of remuneration and other factors. Of bankruptcy
legislation should also be clear that the insolvency administrator to
obtain the right compensation, and to determine their remuneration,
determine the reference element. Remuneration of the insolvency
administrator claims should be classified as bankruptcy costs.
 6, to establish temporary insolvency receiver system
 bankruptcy case in our legislation to the degree of acceptance as a
bankruptcy mark the beginning of time. Once the bankruptcy courts, that
is, generated a series of management procedures for starting the Xiao Li,
such as creditors must declare their claim within the time limit; the
property of the debtor's civil enforcement proceedings must be suspended;
debtor Chu necessary for normal production operations outside of the part
of creditors The settlement is invalid so. Since then, except for law
into the settlement by the debtor, except rectifying process, it entered
liquidation bankruptcy cases. However, when the bankruptcy case
acceptance, not to declare bankruptcy, the debtor does not lose its
property management and dispose of, after the commencement of insolvency
proceedings, the debtor still dominate the enterprise management services
and business property, the creditor will inevitably endanger the future
the repayment of interest. Furthermore, according to the "Bankruptcy Law"
Article 24, even in bankruptcy declaration decision is made, the
liquidation group also declared bankruptcy in 15 days from the date of
the establishment and take over the bankrupt company. Practice, if the
liquidation group was set up not to declare bankruptcy, the bankruptcy
declaration to before the establishment of the liquidation group, the
property of bankrupt enterprises and management services necessary in a
state of neglect, and the court by the human, material and time
constraints, but also No act as "temporary bankruptcy receiver" possible,
so in our country under the framework of the existing insolvency
legislation, there is a need for temporary bankruptcy receiver.
 bankruptcy administrator in the insolvency of the most important level
of an organization, it is related to the degree the possibility of
bankruptcy just, equitable and efficient based on smoothly. Therefore,
the establishment of a sound insolvency system to make the development of
socialist market economy, the situation is now introduced new bankruptcy
law is an important task.

 Paper Reference:
 [1] "Bankruptcy Law", Jung-Tsung Chen a, p. 19.
 [2] "Guide on Insolvency Law," Chai Fabang editor, p. 134.
 [3] "Bankruptcy Law", Jung-Tsung Chen, p. 167.
 [4] "Bankruptcy Law", Jung-Tsung Chen, p. 167.
 [5] "My Issues of bankruptcy proceedings," Ma Ju, containing "Political
Forum", 1989, No. 5.
 [6] "Discussion on the Establishment of the Bankruptcy consortium
system," Han Chang-yin, contained "law", 1999 5.
 [7] "the beginning of comparative insolvency law," Shen Daming, etc., p.
117.
 [8] "Comparison of the beginning of bankruptcy law," Shen Daming, etc.,
p. 219, p. 241.
 [9] "of the Bankruptcy liquidation market, specialization", easy to
change, contained "information of Economic Research", 1995 (3.4), p. 33.
 [10] "Bankruptcy Law", Jung-Tsung Chen, Harvard Business School Press
1986 edition, p. 160. / Center>

				
DOCUMENT INFO
Shared By:
Categories:
Stats:
views:14
posted:4/30/2010
language:English
pages:9
Description: On the insolvency administrator On the Bankruptcy Trustee System