The Pilot Study On The Supervisor Of China's Reorganization

The reorganization is a legal procedure for the purpose of protecting a strait company from bankrupting. In order to avoid the bad influences taken by bankruptcy, it takes all kinds of legal measures to make the company in difficulty better. So the reorganization is a valuable legal procedure, which has been paid attention to by many countries at present. While setting up institutions reasonably is always an important part of the reorganization. Without a set of rational and efficient institutions, the reorganization can't go on smoothly and justly, and the aim of the legal procedure also can't be achieved. Similar to the institutions setting of a regular company, the institutions of the reorganization also consist of the policymaking institution, the executive one and the supervising one. In fact, the policymaking institution is the privies committee, and the executive institution is the reorganizer, while the supervising institution is called different names according to the different legislating modes. For example, some states call it the supervisor, while some ones call it the special judge, such as France. The setting-up of the three power institutions makes the reorganized company have a reasonable power structure with policymaking power, executive power and supervising power interacting each other, which can avoid power abusing and corruption and make the reorganization going on smoothly and justly. According to the present conditions of our country, the writer thinks that, China should copy the reorganization legislating mode of Taiwan province, and set up a supervisor as the special supervising institution. In the Bankrupt Law of P.R.C. issued at August 27th in 2006, although there are no clear institutions called supervisor, yet in fact China has set up the supervisor system in the law. While because of the absence of legislating experiences and skills, the supervisor system of our country looks too simple and short of operability, such as, the law doesn't provide any concrete legal authority and duty for the supervisor, which will make the function of the procedure exterminating heavily, and which is exactly the writing purpose of this paper. So the writer will analyze and expound fully the reasonable setting-up of China's supervising institutions from the angle of the institutions constructing.The structure of this paper consists of introduction, body and conclusion. The introduction mainly tells us the reason for writing, the current studying situation, the key problems and the studying methods, in order to give a preparation to later discussions. The body will discuss the supervisor system from three angles. At first, the writer introduces the legal status of the supervisor, which is the base and key of the problem. The realization of his legal status will help us to analyze his legal authorities and duties, and analyze how to select, supervise and urge him. The writer begins to discuss his legal status by analyzing his generating reasons. In fact, the supervisor is the result of the contradiction between the complicated interest relationships in the reorganization and the court's incapability, which makes the supervisor having two roles in the reorganization: the special helper of the court and the independent supervisor. In order to further analyze his legal status, the writer also compares the supervisor with the reorganizer, the court and the privies committee. And to avoid misunderstanding, the writer also differs the supervisor from the supervisor of the bankruptcy. Meanwhile, at the base of realizing his legal status, the writer concludes his two legal characteristics: neutrality and relative independence so that the readers can form a whole and clear impression on the supervisor. Secondly, the writer will discuss his legitimate authorities and duties respectively. As a legal supervising institution, the supervisor's legal authority just is superintendence, which includes the supervising to the reorganizer, the privies committee and the company's high-level managers. And his supervising period lasts from the beginning of the procedure to the finishing of the reorganizing project carrying-out. Among them, the supervising to the reorganizer is the key problem. While his legal duties mainly relate to the program problems, for example, receiving the right reports and gathering and chairing the privies meeting and so on. The reason for setting up these legal duties is to make sure the reorganizing program smooth and just. The last problem is about the selection and supervision related to the supervisor. These problems will determine whether the supervisor set up by law can bring into full play, and whether he can realize the legislating purpose, so these problems are quite important. As to who can be the selector, who can be selected and when to select, the writer insist that the court should be the selector, and the law should restrict the qualifications for the post from positive and passive angles, and when the court accepts the requirement for reorganizing, it should appoint the supervisor at the same time in order to avoid the supervising blank. And the supervision to the supervisor includes the supervising systems, the supervising institutions and the legal responsibilities. The supervising systems comprise approving of the qualification for the post, the files of his work credit, the guarantee money for his work and the obligatory insurance against his work duties. The supervising institutions involve the supervisions from the court and the privies committee. The most important thing is to set up the responsibility system including the civil, administrative and criminal duties. In addition, by the rules of earning according to work and rewarding the good but fining the bad, the court should determine the appropriate earning for the supervisor according to the complexity and performance of his work. It not only can help to make sure the supervisor work hard and trustily, but also is essential to the professional development of the reorganization practitioners. At last, the writer concludes the writing significance of this paper, and summarizes some unsolved problems related to this title. The writer analyzes and discusses the problem from its abstractness to its concreteness, from the major angles to the minor ones. Meanwhile the writer also pays attention to comparing the differences between the supervisor and other similar institutions. So the paper is organized in sequence of long and lateral directions.