The Intensive Protection Of Labor Remuneration Right In The Process Of Bankruptcy

In recent years, many countries have recognized that bankruptcy has trespass upon labor remuneration right of workers seriously. They have also recognized that this trespass has struck economy seriously and have began legislating and amending relevant law. Though The Law of the People's Republic of China on Enterprise Bankruptcy, which has been adopted in 2006, has legislated some clauses to protect labor remuneration right, these stipulations lack the support of corresponding systems. It is difficult to protect the rights effectively. In this paper, the author analyzes relevant systems according to the problems about the protection of labor remuneration right. This paper researches some contents concerned the protection of labor remuneration right in the process of insolvency from three aspects with the insolvent proceedings as clues. The three aspects include the application of bankruptcy, the acceptance of bankruptcy and bankruptcy liquidation. The paper analyzes the problem that China has not established the system in which workers have rights to file an application for bankruptcy; that it is not perfect that how works participate into the insolvent process; that what sequence the labor remuneration right is. The paper consists of four parts.The first part of the paper defines labor remuneration right. It introduces labor remuneration right from three aspects including its scope, characteristic and content. The scope of labor remuneration right referred in this paper is the one in the category of labor law which is a narrow sense. The author focuses analysis on two essential characteristics, when introduces, which is basic and fragility. The content of labor remuneration right comprise labor remuneration negotiation right, labor remuneration claim right and labor remuneration domination right. Labor remuneration right in this paper limits to labor remuneration claim right.The second part of the paper discusses the protection of labor remuneration right in the link of bankruptcy application. Bankruptcy application is the beginning link of bankruptcy proceeding. The goal of gifting works with the right of bankruptcy application is to protect the equal starting point between labors and other creditors. In this paper, the author analyses whether it is reasonable or feasible to gift labors with the right of bankruptcy application. It is reasonable to gift labors with the right of bankruptcy application whichever judged by basis or the balance between advantage and disadvantage. There are four basis. The author analyze it from four points which is the relevance of labors and bankrupt enterprise, the design of legal system, the interpretation and application of legal clauses which has existed and the logicality of law. It is reasonable because it accords with the conclusion got from balancing advantage and disadvantage. It will cause positive affects to enterprises by gifting works with the right of bankruptcy application. In the point of the feasibility, the author analyzes from two aspects including subject and condition. From what has been analyzed, we can draw a conclusion that the subject of bankrupt application is the representation of labors rather than signal labor. The representation of labors can apply the union or special institution to give assistance when he files an application. However, the union or special institution can not file the application on behalf of himself. It must receive labors'application and commission. Though it strengthens protection of labors'interests to gift works with the right of bankruptcy application, this is a new and immature system. So we can not be too eager and we must design some transitional systems. We can restrict the condition of application, which may confine the performance of bankrupt application, however it provides a way to give a relief to protect labor remuneration right. It is a transitional measure that coordinates the interests of labors and the problem that the relevant organizations and institutions have. The problem that exists in this process will be solved with systems'maturation and perfection.The third part of the paper discusses the protection of labor remuneration right in the link of bankruptcy acceptance. The link of bankruptcy acceptance includes many processes such as deciding whether or not to accept the case, designating a custodian, declaration of the creditor's rights and the meeting of creditors, which affects whether labor remuneration right will be protected reasonably and effectively. The author considers that if we want to strengthen protection of labor remuneration right in the link of bankruptcy acceptance, we must improve the extent of labors'participation. This extent depends on the extent of performance of right to know, right to objection, right to vote and right to superintend. Right to know is the premised condition to improve the extent of labors'participation. Labors have rights to know that the people's court shall decide whether or not to accept the case, who is the custodian and the situation of performing his duty, the situation of debtor's assets, declaration of the creditor's rights and so on. Right to objection is the key right to improve the extent of labors'participation. The law of bankruptcy prescribes some rights to objection, for example, for the court's decision whether or not to accept the case, for the selection and payment of custodian, for the declaration and confirmation of the creditor's rights. Labors have two ways to perform their right to objection. One is performed by labors directly, the other is performed by the meeting of creditors. Right to vote is the nuclear content of protecting labor remuneration right. Creditor's right is carried out through the decision of the meeting of creditors according China's insolvent law. But there is a contradiction in the law. One aspect, the law acknowledges that the representation of labors has the qualification to participate the meeting of creditors. The other aspect, the law just prescribes that the representation of labors has the right to declare opinions. The author considers that this stipulation not only violates the basic principle of the insolvent law——fairly liquidate the credits and debts, also violates the basic principle of law——fair. Labor's right to superintend comprises interior superintend and exterior superintend. Interior superintend is labors to the representation of labors; exterior superintend is the representation of labors to labors. The protection of above four rights provides a fair platform to converse for labors and other creditors, which is beneficial to achieve labor remuneration right.The fourth part of the paper discusses the protection of labor remuneration right in the link of bankruptcy liquidation. The author analyzes from three aspects including the attribute of priority of labor remuneration right, the finite priority of labor remuneration right, and the sequence between labor remuneration right and security interest. Labor remuneration right has priority attribute, the priority protection of whom accords with the aim to establish the system of priority. Though labor remuneration right, as a priority, should be protected by the insolvent law, the legislative purpose of the insolvent law lies in protecting the fair liquidation among creditors. As a result, we must give attention two both strengthening the protection of labor remuneration right and the interest of creditors. For the priority labor remuneration right, we should confine to it from two aspects of amount and time. Here, the author cites the provisions of national legislation about it and advances some legislative proposals about it. The status of priority of labor remuneration right has been acknowledged by most of nations and they have some relevant provisions. At present, the focus of the theoretic dispute is which should be liquidated first between labor remuneration right and security interest. There are different provisions on the sequence of labor remuneration right and security interest. The author considers that labor remuneration right should be more priority than security interest. However,labor remuneration right to be more priority than security interest should be given more strict restrictions than labor remuneration right as a general priority. It will try to ensure security transaction and normal operation of economic order.The protection of labor remuneration right is not only the responsibility of the insolvency law, but also of all legal departments. Currently, China's system of union, priority, social security, payment of labor remuneration and its supervision is not perfect, which is the nuclear problems to restrict the development of relevant system of the insolvent law. Only the balanceable development of various legal departments and effective cooperation of relevant system are able to establish a complete system to protect labor remuneration right.