The Study Of Selection System Of The Bankruptcy Administrator

As an economic phenomenon, Bankruptcy is the inevitable outcome of competes of the market economy. Bankruptcy system is the regulation and solution to this economic phenomenon. The bankruptcy system refers to a special system through which the property of the insolvency debtor could be allotted in equality on legal procedure. In the relationship of bankruptcy, the bankruptcy administrator plays a crucial role. Whether does the relationship between the creditors and debtor be solved, the creditors be compensated, the rights and interests of the other parties be protected are connected closely with the bankruptcy administrator. Most of the countries and regions around the world have established the system of bankruptcy administrator. The introduction of the international accepted system of bankruptcy administrator in The PRC Enterprise Bankruptcy Law was a significant innovation to the bankruptcy system. The selection of a bankruptcy administrator is an important portion of the system of bankruptcy administrator which has just set up, and it still has some defects. Therefore the corresponding stipulations about the system need to be improved in practice and refined further. The selection of bankruptcy administrator is the primary aspect to the effective operation of system of bankruptcy administrator. That a proper selector elects a qualified bankruptcy administrator would be propitious to the Bankruptcy procedures. Thus, the research of the elective system of bankruptcy administrator is significant both in theory and practice.In addition to the introduction and conclusion, this paper is divided into five sections and it's about 33,000 words.The first section sets out the characteristics and legal status of the bankruptcy administrator, which is the theoretical basis. The characteristics of the insolvency administrator can be summarized as neutrality, relative independence and profession. The neutrality and the relative independence service in the value of the fair of the insolvency law and profession services in the value of the efficiency of bankruptcy law. The representation theories of legal status of the bankruptcy administrator are surrogate, duty, insolvent consortium and trustee. Through a comparative analysis of these theories, the author thought that it is more reasonable to take the bankruptcy administrator as a trustee.The second section researches on the selector of the bankruptcy administrator. There are mainly three legislative pattern of the selector of the bankruptcy administrator in worldwide, namely official-governance pattern, self-governance pattern, and official-governance and self-governance in parallel pattern. Official-governance pattern has been adopted in China, that is, the bankruptcy administrator is selected by the court. Considered that official-governance pattern disobeys the civil law spirit, and self-governance pattern faced with lots of difficulties, we must seek the conjunction between official-governance pattern and self-governance pattern, following the tendency of the modern bankruptcy law. Whereas adopting said patterns merely in parallel also has some defects. The author thought the fundamental points of the research of selector of the bankruptcy administrator are to not only ensure the efficiency of bankruptcy proceedings but also make creditors participated in the proceedings. Upon that, the author put forward an appropriate amendment to the parallel pattern, with a view to get a good results.The third section deals with the candidates of the bankruptcy administrator, that is, who can be appointed as the bankruptcy administrator. In this section, the subject requirement, the qualification requirement and the number requirement of the bankruptcy administrator are discussed. There are two patterns of the subject requirement of the bankruptcy administrator, namely that an individual is limited to and that an individual is not limited to. The PRC Enterprise Bankruptcy Law prescribes that an agency, an individual and a liquidation group could be the bankruptcy administrator. There are problems in theory and difficulties in practice for a liquidation group to be the bankruptcy administrator, therefore it should not appoint a liquidation group as far as possible. Because an individual and an agency have their own advantages and disadvantages, it is not reasonable to restrict the scope of individuals to act as administrator in legislation. The qualification requirement of the bankruptcy administrator could be separated into positive and negative qualifications. In reference to the legislative experience of other countries and regions, the author proposed that establish the Licensing examination system and trade association of the bankruptcy administrator. About the number requirement, the author thought that it would be much more appropriate to appoint one person as the bankruptcy administrator.The forth section dissertate the specific ways of selection of the bankruptcy administrator, mainly around the list-selection system. After study on the list- selection system of our country, the author pointed out that it would be not proper for the court to make the list and for random selection. In exploring the causes, the author proposed that the list of bankruptcy administrator should be made by the trade association and it should take a combination of random and merit-based selection approach.The fifth section is about the other issues of the selection system of the bankruptcy administrator, including the appointment time, the acceptance to appointment, the certificate and notice, as well as the change of the bankruptcy administrator. These issues also belong to the category of the bankruptcy administrator, whereas, due to limited space, and after careful selection and arrangement, the author expatiate these issues briefly, not intending to explore in depth. This article taking the selection system of the bankruptcy administrator as the object of study, using comparative analysis, value analysis and so on, in analysis the legislation and practice of other countries and regions, conduct a deep research on the system of the bankruptcy administrator of china. Simultaneously combined with the practice of bankruptcy in our countries, the author put forward some own viewpoints and recommendations, with a view to start that there is more scholars and the legislators pay attention to the system, and work together to promote the system advanced.