On The System Of The Insolvency Administrator

Bankruptcy system is the special system that the companies settle the creditor'srights and the liabilities through the renovation, reconciled, and clearance system,because they cannot clear off the deadline liabilities, in the market competition. In thewhole bankruptcy system, the bankruptcy administrator is the important participator. Itselection, qualification, and obligation will result in the fair, just, and efficientbankruptcy progress, liabilities clearing, and just protection of the bankruptcy creditor'srights. The bankruptcy administrators system is the important bankruptcy law system inevery country, especially in the western countries. The purpose of this system is to letthe professional who is familiar to the bankruptcy business, take over the bankruptproperty and its interrelated business, in the bankruptcy progress. But in our country,the law of bankruptcy in 1986, which is only adapt to the enterprises whose ownershipby the whole people, and the bankruptcy clearing off the liabilities system in the law ofcivil procedure in 1991, the bankruptcy administrators rules are all very general. Thereare many problems come up in the practice. And the new bankruptcy law has beendrawing up from 1994, but has not been announced yet. So this article begin with thelegislation logic of the bankruptcy law, discuss the bankruptcy administrators system inour country, analysising and comparing the different rules and theory of the bankruptcyadministrators system in different countries of different law systems. This articleanalysis the character and law position of the bankruptcy administrators, compares theadvantages and disadvantages of the different theory of bankruptcy administrators indifferent countries, and expound my own opinion. About the law position of thebankruptcy administrators, I back up the "bankruptcy financial group" theory. Becausethere isn't "financial group legal person" theory in our country nowadays, I suggest theindependent legal person position of the bankrupt financial group in the legislation, andadapt the entrust system in the western law system to the bankruptcy administratorssystem. The bankruptcy administrator should be treated as the representative body ofthe bankruptcy financial group, the financial group as commissioned person, thebankrupt person as trust person, the creditor as benefited person, the bankruptcyadministrator will delegate the bankruptcy financial group, take the entrust of thebankrupt person, take the rights of manage, deliver, and distribute the bankrupt property,for the benefit of the creditor. Analysising the different election method of thebankruptcy administrators in different countries, I suggest that the bankruptcyadministrator should be decided by the consult of the creditor conference and bankruptperson, or appointed by the law court if cannot be consulted. At the same time, thetemporary property administrator system should be established. The temporary propertyadministrator should be assigned by the law court. The advantage and disadvantagequalifications of the bankruptcy administrators should be ruled concreted in thelegislation process. Then the bankruptcy administrators qualification will be managedcentralized. The bankruptcy service should be provided by the intermediary bodyconsisted by the bankruptcy professional. At the same time, the bankrupcy intermediarybody will be responsible for the creditor, bankrupt person, and the law court. Thebankruptcy administrators' normal obligation rules which is the good administrators'attention obligation, in the bankruptcy process, should be explicited in the legislation.And so the concrete obligation of the bankruptcy administrators will be provided. Onthe other hand, this article discusses the concrete civil responsibility of the bankruptcyadministrators when they cannot take the obligation of the good administrator's attentionobligation and make the profit lose of the benefit relations. At this time, the bankruptcyadministrator should take the special infringe duty to the benefit relations. The faultinference principle should be applicated in the inculpation principle.