The Research On The System Of Disqualification For Bankruptcy

The system of disqualification for Bankruptcy is an important component of bankrupt duty restriction mechanism, and also makes sure that the due effect of bankruptcy be brought into play. The public responsibility become indifferent and it is short of the mechanism that investigates and fixes liabilities, so to speak, which is the bottle-neck that prevents the Chinese individual bankruptcy system from coming on all the while. Both the development of the commodity economy and the impetuosity of market competition cause corporational operator to take broader power and more ample freedom. The enlargement of corporational operator should be in line with his duty and liability, however, owing to the absence of the forms and the fixed mechanism about responsibility for Business Corporation bankrupt, the operators manage maliciously as well as figure for benefit at their best. The system throws proper restriction on bankrupts or quasi-bankrupts and balances their rights and obligations just through establishing one responsibility fixed and overawed mechanism in bankruptcy. The bankruptcy law cannot provide the system totally; in addition the public and the theoretic kingdom misapprehend "disqualification", which results in the fragmentariness and faultiness of the system, and prevents the legislation and practice from developing. This paper makes doctrinal analysis and research on the system of disqualification for bankrupt, moreover puts forward some suggestions, which is divided into three parts including foreword, main body and concluding remarks in total 46,000 words approximately. The main body is composed of four branch sections as follows:First section is a summary of the system of disqualification for bankruptcy. By way of combing out the current regulation and theory about the system of disqualification for bankruptcy, this section defines its connotation as individual debtors or quasi-debtors under the sentence of bankruptcy liquidation lose the qualifications of being engaged in public affairs, management and other credit-standing occupations. The quality of disqualification for bankrupt belongs to the restrictions in the legal capacity. This section explains that the system either plays unusual role in avoiding "voluntary" bankrupt or has common function of ensuring claims' realization and promoting good faith, also compares it with the system of penal record of previous crime and so on.Second section narrates the history changes of the bankruptcy law doctrine and the formation of the disqualification system. In addition to the advancement of society and the protrusion of civilization, vague generalization of human's rights cause changes of the bankruptcy concept, e.g. from" bankruptcy is guilty of a crime" to "bankruptcy is innocent", and "responsibility is not exempted in bankruptcy" to "bankruptcy discharge", these changes finally provide social, economic and psychological base for the formation of the disqualification system.Third section analyses the justness of the disqualification for bankruptcy. The system does not infringe humans' rights, but just safeguard humans' rights of the majority. The disqualification for bankruptcy does not depend on "subjective fault", it can entirely achieve the object that rewards and punishment is clearly demarcated by procedural design. Bankrupts enjoy benefits from discharge; quasi-bankrupts enjoy essential benefits from "discharge" through the doctrine of corporate personality independence and the principle of limited investor; for the sake of ensure the survival and immaculacy of some vocations, which are philosophic bases of the existence of the disqualification system.Fourth section expresses some legislation suggestions about the system .it should adopt the model of "certain disqualification with relax rehabilitation conditions", the subject of disqualification includes bankrupts and quasi-bankrupts, the disqualification should means not being engaged in three types of public affairs, management and other credit-standing occupations according t...