A Study On The Norms Of Bankruptcy Law

Bankruptcy law is both procedural law and substantive law.The special object of regulation and the purpose of diversification decide that the public power is different from other civil and commercial law in the bankruptcy law.Mandatory norm is the manifestation of public power in private law.The bankruptcy system involves public and private interests,private interests and private interests,efficiency and fairness of multiple interests balance.The mandatory norm is directly related to the realization of the function of public power in the bankruptcy law,which relates to the configuration of the compulsion and freedom in the bankruptcy law,and the boundary of the public power in the bankruptcy law.Based on the mandatory norms on the basis of the main analysis object,theoretical basis of demonstration of bankruptcy law mandatory norms,analysis of legislative configuration and boundary of mandatory norms of bankruptcy law mandatory standard principle,clear the validity and legal effect of violation.In addition to the introduction and conclusion,a total of five chapters,the main contents are as follows:The first chapter mainly discusses the theoretical basis of the mandatory norm of bankruptcy law.The mandatory norms in civil and commercial law reflect the tension between the private sphere and the public sphere,the subject autonomy and the state public rights intervention,and the two categories of private law and public law.Peremptory norms are more and more common in the modern civil and commercial law system,and become a reverse development of modern public and private law.And this situation has its theoretical basis and practical factors.The law of bankruptcy has the goal of diversified legislation,the value orientation of economic law,the pursuit of the whole social benefit and the substantial justice.The concept of modern bankruptcy law has gradually abandoned the pursuit of the maximization of the interests of creditors,but to the goal of diversification as the legislative purpose,which requires the interests of multiple subjects to seek balance between the interests of the complex.Private law means the balance of interests,resolve conflicts has limitation and low efficiency,"failure" of the private law regulating the public power to intervene,to supplement mandatory norms of arbitrary norms,conflict of interest to the efficient method to achieve multiple goals of bankruptcy law,bankruptcy law.Bankruptcy law and bankruptcy policy blend,bankruptcy policy is often directly into the bankruptcy law to form a mandatory norm.The legislation and judicial application of the mandatory norms of bankruptcy law should insist on the value of order,justice and efficiency.The second chapter mainly examines the historical evolution and legislative comparison of mandatory norms of bankruptcy law.The bankruptcy law has the nature of substantive law and procedural law,and it contains a large number of mandatory norms.Retroactive to the ancient Rome law,the form of bankruptcy law and the form of compulsory norms have appeared.After the revival of the medieval Rome law,a relatively complete bankruptcy procedure was gradually built in northern Italy,which was used for reference by coastal cities and developed into a bankruptcy system for urban merchants.At this point,the system has a strong mandatory color.In the modern times,the history of human legal system really developed "bankruptcy law",and the bankruptcy law of this period still had a strong color of punishment and official constitution.The total amount of the mandatory norms of modern bankruptcy law did not decrease,but showing different configurations,the mandatory norms of legislation is more and more to adjust the balance of interests,rather than a single protection of creditors and debtors sanctions.Through historical analysis and comparative study,the development trend of bankruptcy law mandatory norms and legislative characteristics are as follows:first,technology and procedure of mandatory norms showed a trend toward increasing;second,the implementation of mandatory rules by private security force eventually changed the coercive power of the state compulsory standard implementation;third,different the bankruptcy procedure,different countries,different subjects,mandatory standard configuration is also different.The third chapter mainly examines the mandatory norms in the bankruptcy law.Identification of mandatory rules in bankruptcy cases in judicial practice,and to determine the specific legal consequences of its application in order to apply the law correctly according to different mandatory norms,in order to play the function of mandatory norms,to achieve the purpose of legislative norms formulated by the bankruptcy procedure in order to guarantee.The article points out that the identification of mandatory norms of bankruptcy law should follow the path of literal interpretation-purpose interpretation.In the legislative language of our country,the meaning of this kind of legislation is explained by modal function words and auxiliary language.Therefore,it is mainly based on these two expressions to identify the mandatory norms in bankruptcy law.Based on the limited expressive function of legislative language,it is necessary to make a preliminary identification after literal interpretation and to make substantive identification with objective interpretation in the mandatory norms of bankruptcy law.This paper analyzes the distribution and embodiment of compulsory norms on the three sections of reorganization,reconciliation and liquidation.The mandatory norms can be divided into two categories:procedural and substantive,substantive mandatory rules also can be divided into the qualification of mandatory norms and mandatory norms and protection efficacy evaluation of mandatory norms,duties and responsibility of mandatory norms of mandatory norms.The analysis of the consequences of mandatory norms in violation of the bankruptcy law should distinguish between the subject regulated by the rules and the types of mandatory norms,which can lead to different consequences.But these only have the preliminary reference value,and the final legal consequence should be determined according to the principle of proportionality.In the fourth chapter,the author discusses.the boundary of public power in the bankruptcy law with the norm of mandatory norms.The legislative configuration and judicial application of the mandatory norms of the bankruptcy law should follow certain values and principles rather than arbitrarily set or arbitrarily interpreted.It has its own value orientation,and should examine whether the mandatory standard configuration violates this value in legislation.On the basis of value orientation,the legislative configuration needs to be set according to certain principles to avoid the absence or generalization of peremptory norms.The public power in the bankruptcy law is embodied in the mandatory norm;the boundary problem of the public power in the bankruptcy law is the boundary and limit of the mandatory norm of bankruptcy law.The intervention of public power should adhere to the principle of moderate intervention and the principle of proportionality.Spontaneous public power cannot be replaced in the private subjects in the bankruptcy of autonomy and regulation of market economy become a leading force in the allocation of resources,can not violate the goal of bankruptcy law mandatory norms of order,justice and efficiency values.The intervention of public power should be in accordance with the principle of appropriateness,the principle of necessity and the principle of proportionality in a narrow sense.In the case of management candidates,our country adopts the doctrine of the power of authority appointed by the court,to a certain extent,contrary to the principle of necessity and the principle of proportionality in a narrow sense.It is not necessary to establish a roster of administrators through the court as the main body to realize the selection of the appropriate subject for the management.The court authority hinders the bankruptcy administrator selection mode of market regulation,there are deficiencies in the system,such as the abuse of power,andthe criteria are quite different,such as rigid roster.But China's current "bankruptcy law" mandatory norms legislation configuration has many problems:first,although the"bankruptcy law" mandatory standard number,but did not completely cover the state power compulsory intervention place in the bankruptcy system,but the formation of the absence of mandatory norms;second,the lack of mandatory norms of the legal consequences;third,the mandatory norm bounds,beyond the power of intervention limits,composed of party autonomy and the market mechanism of excessive restrictions.The fifth chapter discusses the problems and solutions of the allocation of mandatory norms through examples of several specific systems or provisions.On the one hand,in some areas,the mandatory norms of bankruptcy law should be strengthened.The mandatory norms of bankruptcy law should have the initiative.The implementation effect of China after the"bankruptcy law" enacted and unsatisfactory,should adjust the "bankruptcy law" compulsory standard configuration,in respect of market regulation mainly under the premise of strengthening the role of public power,the mandatory provisions of existing implement,enhance the operability of mandatory norms.In this sense,the bankruptcy law "hard" to"spirit".For example,it is necessary to construct the coercive model of China's bankruptcy initiation,to regulate the behavior of the market subject with legal coercive force,and to regulate the operation of the market economy by legal means.The compulsory mode includes indirect coercion and direct coercion,the former is mainly based on the bankruptcy obligation of the enterprise operator,and the latter is mainly initiated by the public authority.On the legal liability provisions in the bankruptcy law of our country as an example,the "bankruptcy law" responsibility system is weak,not enough practice,the weakening of mandatory norms lead to bankruptcy practice had not before,the bankruptcy law of "failure",an urgent need to complement and strengthen.On the other hand,the bankruptcy law should have mandatory norms of modesty.As a kind of public intervention form of mandatory norms,should highlight the modest character in the legislative and judicial process.The reason why the modesty of the criminal law has been widely used in the bankruptcy law is the introduction of vocabulary,because in properly handling the relationship between public power and private autonomy problems,proper and appropriate public intervention coincided with the criminal law "complementary" and the "last resort" inherent consistency.In the case of the court's compulsory approval of reorganization plan,the provisions of the bankruptcy law of our country give too much space to the public power,which can easily lead to the invasion and interference of coercive powers to the autonomy of the parties.The power of modesty and restraint of mandatory norms in bankruptcy law implementation,need programs designing and the corresponding right relief mechanism to restrict.