Legal Reflections On The Establishment Of Compulsory Bankruptcy System

The establishment of compulsory bankruptcy system has direct relations with the perfection of the starting mechanism of the bankruptcy procedure, and affects the application of the function of the bankruptcy system. As China is experiencing the transformation from planned economy to market economy, there are some shortages such as late movement, heavy fetter and insufficient experience. Especially it is considered that bankruptcy law belongs to the category of commercial law, and it should carry out the principle of private law autonomy and the start of bankruptcy procedure can only take the doctrine of application rather than use state and public power to intervene, which causes that the existing Enterprise Bankruptcy Law of our country has not established compulsory bankruptcy system yet.Compulsory bankruptcy system means that during the process of the debt execution, courts can directly start bankruptcy procedure according to authority without parties'application. As this system comes down to the scope and source of law cases, the starting time of bankruptcy procedure, the property custody of bankrupt enterprises, and the relations with the existing bankruptcy procedure, it needs researches and explorations make good omissions and deficiencies about the starting mechanism of existing bankruptcy procedure, solve the problems in the execution of existing Enterprise Bankruptcy Law better, protect the benefits of creditors timely and sufficiently, and promote healthy and ordered development of market economy.Basing on the condition of the domestic and international bankruptcy legislation and combining with years of experience in bankruptcy trial, this article makes a multi-angle and multi-level discussion on the compulsory bankruptcy system. Firstly, analyzing the conception and legal characteristics of compulsory bankruptcy system, the writer has a fully and accurately grasp of the system. Secondly, through analyzing the necessity and feasibility of establishing compulsory bankruptcy system, the article puts forward that establishing compulsory bankruptcy system is accord with the objective rule and realistic demand by discussing from the aspect of social value, social environment and social relationship. Then, starting from establishing a good external environment for law enforcement and respecting, cherishing the existing judicial resources, the writer makes a theoretical exploration on the general thinking and concrete plan, which makes the system more scientific, reasonable and maneuverable, and suitable for the economic and social development of our country better.This article is mainly divided into three parts. In the first part, the writer uses the legislative experience of foreign countries and regions to analyses the concept and legal characteristics of compulsory bankruptcy system. These characteristics contain the uniqueness of procedure starting, the restriction of bankruptcy object, the difference of liquidation content, the extinction of subject's qualification, the instantaneity of taking over property and the similarity of continued procedure.In the second part, the writer firstly analyzes the necessity of establishing compulsory bankruptcy system and points out the problems and shortcomings in the starting mechanism of existing bankruptcy procedure. These disadvantages are as following: the debtors don't like to apply for bankruptcy; the creditors are unwilling or difficult to apply for bankruptcy; the single creditor has no right to apply for bankruptcy; the question of difficult execution and lacking credit can't be completely solved; the needs of showing the value of laws can't be satisfied. Then, the writer analyzes the feasibility of establishing compulsory bankruptcy system, and explains it in detail from the following five aspects: the social security system of our country, the acceptability of citizens, the system reform of bank, the system of bankruptcy manager, the market of title transaction, which shows that the conditions and opportunities of establishing compulsory bankruptcy system are ready.In the third part, starting from establishing a good external environment for law enforcement and respecting, cherishing the existing judicial resources, the writer puts forward the general thinking and concrete plan of establishing the compulsory bankruptcy system, and mainly discusses the objects of compulsory bankruptcy, the civil rights of debtors and the procedures and requirements of bankruptcy, which makes the compulsory bankruptcy system more specific, feasible, and maneuverable.