Research On Supervision Mechanism Of Bankruptcy Administrator

As one of the most important institutions in bankruptcy proceedings,the bankruptcy administrator is an important institutional reform and innovation in the process of standardization,marketization and internationalization of China's bankruptcy law.The bankruptcy administrator manages the specific affairs of bankruptcy.The quality and professional level of the administrator decide whether the bankruptcy procedure can be carried out fairly,fairly and efficiently.With the deepening of supply-side structural reform,the unique function of bankruptcy law has been paid more and more attention.In this environment,the effect of the implementation of the bankruptcy law depends to some extent on the competence and diligence of the bankruptcy administrator,which puts forward higher requirements for the practice of the bankruptcy administrator system.In this paper,the supervisory mechanism of the bankruptcy administrator is taken as the research object,and the methods of empirical research,normative analysis,historical analysis,comparative study and literature analysis are used comprehensively.Through the analysis of the basic theory of the bankruptcy administrator system,the diversified supervisory mechanism of multi-subject participation and multi-means co-governance is put forward.We should reconstruct the subject of supervision,optimize the content of supervision,effectively supervise the bankruptcy administrator,and promote the standardized development of the bankruptcy administrator.In this paper,the structure and layout,in addition to the introduction and conclusion,is divided into four parts:The first chapter analyses the basic theory of supervisory mechanism of bankruptcy administrator.As the administrator of bankruptcy affairs,the bankruptcy administrator has the characteristics of legality,independence,neutrality and professionalism.The bankruptcy administrator has the theory of agency,duty,bankruptcy consortium and trust in the legal status.Each theory has its own advantages and disadvantages.Our country's bankruptcy legislation adopts the theory of legal institution,which holds that the bankruptcy administrator is the legal institution stipulated by the bankruptcy law and occupies the central position in the bankruptcy proceedings.As a special legal act to correct the market,supervision can play a normative role in the management activities of market subjects.The implementation of supervision over the bankruptcy administrator has a realistic legal basis,which can achieve the balance between freedom and order,private rights and social public interests,creditors and debtors.The supervision of the bankruptcy administrator can ensure the scientific and reasonable selection procedure,improve the efficiency of selection,promote the healthy competition of the bankruptcy administrator,and promote the performance of the bankruptcy administrator's duties.However,due to the high cost of supervision,there are cases of supervision failure.Therefore,the supervision of the bankruptcy administrator should be appropriate,clear about the objectives and principles of supervision,and the scope of application of supervision.The main characteristics of the effectiveness of supervision are multi-subject participation and multi-means co-governance.Therefore,in the supervisory system of the bankruptcy administrator,the government,the court and other multi-subjects should work together to form a new pattern of supervisory mechanism of the bankruptcy administrator.The second chapter analyses the problems existing in the supervisory mechanism of bankruptcy administrator in China.The existing supervisory mechanism of bankruptcy administrator in China has inherent defects,which lead to the actual operation of the bankruptcy administrator system does not meet the statutory expectations,and is not conducive to the construction and development of the bankruptcy administrator system.On the subject of supervision,there are some situations,such as the offside of court supervision,the absence of creditor supervision and the absence of professional supervision,which result in the failure of the existing supervisory body of the bankruptcy administrator to play its due role and the formality of the supervision of the bankruptcy administrator.In terms of supervision content,there are some problems,such as inconsistent admission qualification,unscientific selection procedure,unclear obligation standard and lack of legal liability,uneven quality of bankruptcy administrators,non-standard performance of their duties,and failure to fully realize the effectiveness of bankruptcy law.The reason is that the bankruptcy legal system in China is insufficient.The third chapter clearly defines the scope and responsibilities of the supervisory subject of the bankruptcy administrator.On the basis of the analysis of the existing legislative mode of supervisors,this paper puts forward the idea that our country should pay equal attention to both industry supervision and business supervision for bankruptcy administrators.Industry supervision shall be carried out by the administrative department in charge of bankruptcy affairs and the bankruptcy administrator independently.Business supervision shall be carried out by creditors,courts and qualification management institutions.In the main body system of supervision,the court gives priority to indirect supervision,establishes the leading position of supervision,and realizes the guidance and supervision to the bankruptcy administrator.The creditors' meeting shall exercise direct supervision,grant them the right to decide on the appointment of the bankruptcy administrator,refine the scheme for the management of the debtor's property,fill in the gaps in the effectiveness of the administrator's actions before the creditors' resolution,and strengthen the supervision of the bankruptcy administrator.Through defining the time and election method of the creditor committee,setting up special funds,implementing dynamic management,strengthening the jurisdiction of judicial review,ensuring the daily supervision effect of the creditor Committee on the bankruptcy administrator.Timely and full understanding of the performance of the bankruptcy administrator and the progress of the bankruptcy proceedings is the precondition for creditors to exercise their supervisory power.Legislation should not only grant objecting creditors the right to raise objections to the court,but also prevent the abuse of objection.The procedure of exercising objection rights of objecting creditors should be standardized.The establishment of the administrative department of bankruptcy affairs can clarify the boundaries between administrative power and judicial power,realize the government's active management and supervision of bankruptcy affairs,urge the bankruptcy administrator to perform his duties according to law,and promote the effective implementation of the bankruptcy law.Trade associations have powerful social governance functions.The bankruptcy administrator's self-governing organization can guide and manage the bankruptcy administrator,take charge of the daily training and vocational education of the bankruptcy administrator,draw up the administrator's roster and recommend the bankruptcy administrator to the people's court,play the role of industry self-governing management,and supervise or intervene in the bankruptcy administrator.The fourth chapter discusses the optimization measures of bankruptcy administrator's supervision content.The bankruptcy administrator supervises various specific affairs,and the content of supervision is extensive and complex.The qualification of the bankruptcy administrator is the prerequisite for the bankruptcy administrator to participate in the bankruptcy administration.Through the comparative analysis of the legislative examples of the qualification of the bankruptcy administrator,we can standardize the system provisions of our country,restrict the qualification of the bankruptcy administrator,and implement the necessary market access measures,which can effectively supervise the bankruptcy administrator and ensure the overall level of the bankruptcy administrator team.Improve the economic efficiency of bankruptcy management activities,reduce transaction costs,and obtain good bankruptcy benefits.The selection of bankruptcy administrator determines that bankruptcy cases can be handled reasonably and directly affects the interests of stakeholders.The selection subject of the bankruptcy administrator shall respect the reasonable exercise of the party's autonomous rights in accordance with the procedures,substantive requirements and guidance provided by law under judicial control.The debtor's voice in selecting the bankruptcy administrator in the reorganization and reconciliation proceedings should be increased.We should enrich the scope of the selection of bankruptcy administrators,specify the proportion of the members of the liquidation team,and make the main body of the compilation of the administrator roster more effective,so as to achieve the competence of the selected bankruptcy administrators.The bankruptcy administrator has the right to make an independent judgment on the property and business of the debtor,and has the obligations of diligence,conscientiousness,personal management,timely reporting and non-resignation.We should refine the criteria for judging the obligations of the insolvency administrator,implement strict and diligent criteria of compromise,rationally define the situation of conflicts of interest,clarify the contents and procedures of the report,systematically stipulate the responsibility system for abusing rights and violating regulations,and effectively supervise the performance of the insolvency administrator.The existence of liability can promote the bankruptcy administrator to perform his duties.Systematically stipulating the responsibility system of the bankruptcy administrator can improve the quality and effect of supervision.