Bankruptcy Relief Study

Bankruptcy remedy means a method for related person or company applying for debtor's bankruptcy liquidation or asking for bankruptcy prevention and a remedy approach for interest of related person or company in bankruptcy process when the debtor fails to pay off debts due. It is also an issue related to procedure and institution. As a legal institution, bankruptcy is the core of bankruptcy remedy. Bankruptcy remedy in this thesis mainly deals with two issues, one is why choose bankruptcy remedy and, the other is how to exert bankruptcy remedy. Firstly, why choose bankruptcy?The first is why the author chooses bankruptcy remedy as the research object? In legislation and practice, some developed countries, zones or reforming countries have mature bankruptcy law and the law is regarded as a market constitution, so the importance of bankruptcy remedy is fully embodied. Bankruptcy remedy is not a new thing, and it becomes a necessary tool to harmonize public interests in these countries or zones, especially through consummating bankruptcy prevention system and making the styles of bankruptcy prevention diverse. But in China there are many flaws in related institutions, therefore it can not meet the need of protecting bankruptcy remedy. And the scholars always use the notion of bankruptcy remedy to name remedying employee in bankrupt enterprise. They are still not used to implement bankruptcy remedy to solve related subjects' development and harmonize social public interests.The second is the ultimate reasons of bankruptcy remedy. The ultimate reasons of bankruptcy remedy is right remedy and harmonizing right conflicts, that is, bankruptcy remedy is a method to be chose, and sometimes it is the best choice, sometimes an only choice, a reasonable choice for right remedy and right conflicts.The third is the values embodied by bankruptcy remedy. Bankruptcyremedy not only meet the need of our duality economy system (one is macro-regulated economy, the other is market economy), but also helps to reach the target of advancing reforming and opening and constructing harmony society and it is a reasonable choice for the government intervening society and economy.The forth is the functions embodied by bankruptcy remedy. Positive functions includes protecting creditor's right, realizing the right and protecting creditor, furthest protecting debtor's right, protecting his right and providing with opportunity for revegetation, coordinating social public interests, to be a constitution ruling market, restricting company manager more or less and constructing harmony society. Negative functions includes losing market subject, causing unemployment, escaping debts through bankruptcy, denigrating debtor under bankruptcy remedy, failing to reorganize makes long liquidation and increase creditor's loss and abusing bankruptcy process. Therefore we should do our best to avoid and clear up these negative functions.As to research methods in why choose bankruptcy remedy, after discussing the ultimate cause of bankruptcy remedy by the method of jurisprudence, that is a general theoretic analysis on right and its remedy, right conflict and its agreement, the author uses logic-reason method to advance that bankruptcy remedy is a reasonable choice for harmonizing right remedy and right conflict. Economic analysis method is also be used to probe the functions of bankruptcy remedy.Secondly, the thesis discusses how to bankruptcy remedy. For lack of many institutions including bankruptcy remedy and not meeting the need of applying bankruptcy remedy, it is ugly to construct related perfect methods, procedures, institutions and how to exert bankruptcy remedy justly. The part mainly relates to the forms of diversifying bankruptcy remedy including bankruptcy prevention and liquidation, remedy in bankruptcy procedure andthe trend or bankruptcy remedy.The first is "general theory on way of bankruptcy remedy", which mainly discusses some common basic rules of bankruptcy liquidation and prevention including insisting "incapable of discharge" principle on bankruptcy cause, changing multi-mode of legislation, choosing general bankruptcy doctrine on bankruptcy capability, advancing broadening the extent of bankruptcy applicant and adding the provision on declaration of bankruptcy, emphasizing paying bankruptcy costs and legal fares beforehand and exclusive jurisdiction on bankruptcy cases when dealing with formal elements of bankruptcy and accepts a bankruptcy case.The second is bankruptcy prevention. We should construct our diverse bankruptcy prevention system after probing legislations on our Taiwan conciliating by chamber of commerce, legislations on Japanese company restructure, Japanese conciliation rules, South Korea conciliation rules, Taiwan conciliating in court, UK conciliating before, involuntary conciliating in German, Japan and Taiwan, Restructure procedure in USA, company rehabilitation in Japan.The third is identifying the values of bankruptcy liquidation and principles on designing related institutions. Then we use these principles coped with issues hereinafter: the terms of declaration of bankruptcy and removing obstacles of bankruptcy, the forms of declaration of bankruptcy and force on status or property of bankrupt, bounds of property of the estate, management, appraisal and value increasing on property of the estate after studying legislations in Japan and our Taiwan, creditor's right, costs and other related issues, and unemployment relief for the unemployed in the process of bankruptcy liquidation though researching legislations in USA.The forth is bankruptcy procedure remedy which includes six issues. One is exerting bankruptcy remedy uniformly by centre organ. We should enact uniform bankruptcy law, change legislation mode from duality to single,unify bankruptcy prevention and bankruptcy liquidation and settle legal conflicts between the law and other laws. Another is special organ and judicial organ protected by bankruptcy remedy procedure. Based on analyzing legislations in USA, the author discusses the appointment, authority and reward of bankruptcy manager, the authority and voting-mechanism of creditor's conference, the authority of creditor's commission, constructing bankruptcy courts and assigning expert judges. Another is a choice on right remedy for related person and the remedy means of right conflict, including the forms of declaration and investigation of creditor's right, exertion of right of priority, right of reclamation, right to set-off, right of denial, dunning and confiscating registered capital for the interest of property of the estate, and how to re-remedy on manager's behavior, decision of creditor's conference or commission and court's verdict. Another is simplifying remedy procedure and ending the procedure. Another is bankruptcy exemption, exemptions, losing right, restoring right and bearing responsibility. The last one is conflict between power and remedy for power, which including conflict and coordination between bankruptcy remedy and civil litigation, between bankruptcy remedy and execution procedure, between bankruptcy remedy, arbitration procedure, non-civil procedure and administrative procedure.Lastly, whereas lack of related legislations in China, we should construct and consummate our bankruptcy remedy based on new international current and related practice in IMF and WBR.In studying "how to bankruptcy remedy" and analyzing the necessity of the institution, the author also does not depart from two research routes, that is, the inner route is right remedy and corresponding right conflict, the outer route is that bankruptcy remedy is a reasonable choice for macro-regulated economy, advancing reforming, opening and socialist market economy and constructing harmony society. So it is clear to identify the values andfunctions of bankruptcy remedy. When discussing the values of bankruptcy remedy, the author uses a value analyzing method, and takes value rule into account when establishing institution. When discussing the form and institution of bankruptcy remedy, he also uses comparing method. Based on introducing legislations or practices in many countries or zones, he analyses the flaws in our now legislation and "Law of Enterprise Bankruptcy of the People's Republic of China (Daft)"and puts forward some constructive projects. In procedural practice part, he studies the key problems in some cases adjudicated by himself and using economic analysis method to study how to design the institution of bankruptcy liquidation. In addition, when discussing material methods, procedures and institutions, the author almost reviews every provision in our related law or drafting law and advances some valuable projects.