Insolvency Administrator Legal System

Bankrupt caretaker is the specialized organization, which is in over-all charge of all property of debtor and also is responsible for their storage, clearing, appraisal and dealing with, assignment, thus liquidates all the affairs under the conductor and supervision of court after starting the procedure of bankruptcy. This organization is significant on the bankruptcy law; it involves and realizes the overall protection of creditor's interests fundamentally. So, the bankruptcy laws of various countries have stipulated the bankrupt caretaker's system invariably.The main content of the bankrupt caretaker's system includes the caretaker's concept, legal status, even selecting and discharging, rights and duties, supervision to the caretaker, etc...According to the legislation and judicial precedent of other countries such as U.S.A., Great Britain, Germany, Japan, and in terms of comparative jurisprudence and economic law science, this paper, basing on the national conditions of our country, tries to analyze and compare about the above-mentioned problems, through adopting the total-parts type logic method, thus points some imaginations and suggestions for perfecting our legislation of bankrupt caretaker.This paper divides five parts altogether besides foreword and conclusion.First part is the summary of Bankrupt caretaker's system. This part originally introducesthecaretaker's concept. Through the comparison legislation of various countries, it points out the problem existed in the current law of our country, and offer the suggestion of legislating. In order to make readers have deeper understanding to the bankrupt caretaker, I have investigated the origin and development of the bankrupt caretaker's system in terms of history, and has analyzed its necessity existing.Second part is the bankrupt caretaker's legal status. Firstly, this part goes into introduction and analysis of the status, separately points out the pluses and minuses of main three theory act as agent, post, and bankrupt financial group exists in countries of continentlaw. Secondly this paper has analyzed the recognized current theory of clearing group's legal status by the scholar of our country, through analyzing the following six theories as legal representative theory, special organization theory, clearing theory, double status theory, accurate judicial organization , bankrupt financial group representative theory , I think bankrupt financial group representative theory can do better in reflecting the orientation of bankrupt legislation, in remedying deficiency of other theory, so I suggest that the legal status of bankrupt financial group representative should be confirmed in our newly bankrupt legislation.Third part is selecting and discharging of bankrupt caretaker. The right bankrupt caretakers can carry out the post fairly, while the inaccurate bankrupt caretaker will carry out on the country. In view of its importance, I regard it as a part to describe. This part has recommended three foreign kinds at first: Court selecting, creditor meeting selecting and the combination of court selecting and creditor meeting selecting. Through comparative analysis of these three methods, I draw a conclusion that only court selecting or creditor meeting selecting can not keep up with the development trend of bankrupty law, thus I propose that the new bankruptcy law of our country should adopt the legislative mode of the dual track system while legislating. Secondly, I introduce the bankrupt caretaker's qualification and select range, through comparing analysis method, point out that our country should stipulate the caretaker's positive and passive qualification and new legislation should comply with the development trend of bankruptcy law in the selecting range, mainly from the intermediaries, such as the accounting firm, lawyer's office, etc. At the end I let the thoughts and criticism out for the minuses in our current bankrupty law.The fourth part is Bankrupt caretaker's rights and duties. This part recommends the bankrupt caretakers rights to occupy and manage bankrupt property at first. There are three kinds of functions and powers occupying the bankrupt property mainly: Demand to refer to the relevant materials, take over the property, acceptance to discharge or hand over; There are five kinds of functions and powers of managing bankrupt property mainly: Examine right in creditor's rights, continue the bankrupt's opening, accept or stop bankrupt to enforce the contract, cancel right, appraise at the current rate functions and powers that assign to bankrupt property. This part gives a overall introduction of caretaker' right combined with the foreignand home bankrupt regulation and points out that the new legislation in our country should not regard it as the caretaker's functions and powers to arrange the worker while legislating. Secondly ,through analyzing the regulation of bankrupt caretaker in case law, this part points out that our country should introduce the "kind- heartedness "theory and perfect the regulation of the bankrupt caretaker's obligation in our country.The fifth part is the Supervision of the bankrupt caretaker. This part introduces three kinds of legislative examples at first: The court supervises, creditor's meeting supervises, and special person supervises systems. Secondly it analyzes the existing problem of the bankrupt caretaker's supervision mechanism in our country, for instance: the supervising subject is single, supervising measure is vague and general, etc. And then it offers the suggestion of perfecting our country's supervisioa mechanism, such as the new bankruptcy law should give a principle regulation to the bankrupt caretaker's obligation, give play to the role of supervision of the multi-level, pluralistic subject, and set up bankrupt systems of superintendent etc.The sixth part gives the suggestion perfecting the bankrupt caretaker's system of our country .such as Change the appellation of clearing group, Set up temporary caretaker's system change the select caretaker's range , define bankrupt reward of caretaker ,etc. I wish this paper can be beneficial in the hope of the maturity and perfection to the bankrupt caretaker's system of our country.