Analysis Of The Bankruptcy Administrator System

Bankrupt caretaker is the specialized organization, which is in over-all charge of allproperty of debtor and also is responsible for their storage, clearing, appraisal and dealingwith, assignment, thus liquidates all the affairs under the conductor and supervision ofcourt after starting the procedure of bankruptcy. This organization is significant on thebankruptcy law;it involves and realizes the overall protection of creditor's interestsfundamentally. So, the bankruptcy laws of various countries have stipulated the bankruptcaretaker'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 economiclaw science, this paper, basing on the national conditions of our country, tries to analyzeand compare about the above-mentioned problems, through adopting the total-parts typelogic method, thus points some imaginations and suggestions for perfecting our legislationof bankrupt caretaker.This paper divides six chapters altogether besides foreword and conclusion.First chapter is the summary of Bankrupt caretaker's system. This part originallyintroduces the caretaker's concept. Through the comparison legislation of variouscountries, it points out the problem existed in the current law of our country, and offer thesuggestion of legislating. In order to make readers have deeper understanding to thebankrupt caretaker, I have investigated the origin and development of the bankruptcaretaker's system in terms of history, and has analyzed its necessity existing.Second chapter is the bankrupt caretaker's legal status. Firstly, this part goes intointroduction and analysis of the status, separately points out the pluses and minuses ofmain three theory act as agent, post, and bankrupt financial group exists in countries ofcontinent law. Secondly this paper has analyzed the recognized current theory of clearinggroup's legal status by the scholar of our country, through analyzing the following sixtheories as legal representative theory, special organization theory, clearing theory, doublestatus theory, accurate judicial organization , bankrupt financial group representativetheory , I think bankrupt financial group representative theory can do better in reflectingthe orientation of bankrupt legislation, in remedying deficiency of other theory, so Isuggest that the legal status of bankrupt financial group representative should beconfirmed in our newly bankrupt legislation.Third chapter is selecting and discharging of bankrupt caretaker. The right bankruptcaretakers can carry out the post fairly, while the inaccurate bankrupt caretaker will carryout on the country. In view of its importance, I regard it as a part to describe. This part hasrecommended three foreign kinds at first: Court selecting, creditor meeting selecting andthe combination of court selecting and creditor meeting selecting. Through comparativeanalysis of these three methods, I draw a conclusion that only court selecting or creditormeeting selecting can not keep up with the development trend of bankrupty law, thus Ipropose that the new bankruptcy law of our country should adopt the legislative mode ofthe dual track system while legislating. Secondly, I introduce the bankrupt caretaker'squalification and select range, through comparing analysis method, point out that ourcountry should stipulate the caretaker's positive and passive qualification and newlegislation should comply with the development trend of bankruptcy law in the selectingrange, mainly from the intermediaries, such as the accounting firm, lawyer's office, etc. Atthe end I let the thoughts and criticism out for the minuses in our current bankrupty law.The fourth chapter is bankrupt caretaker's rights and duties. This part recommendsthe bankrupt caretakers rights to occupy and manage bankrupt property at first. There arethree kinds of functions and powers occupying the bankrupt property mainly: Demand torefer 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 stopbankrupt to enforce the contract, cancel right, appraise at the current rate functions andpowers that assign to bankrupt property. This part gives a overall introduction of caretaker'right combined with the foreign and home bankrupt regulation and points out that the newlegislation in our country should not regard it as the caretaker's functions and powers toarrange the worker while legislating. Secondly ,through analyzing the regulation ofbankrupt 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 obligationin our country.The fifth chapter is the supervision of the bankrupt caretaker. This part introducesthree kinds of legislative examples at first: The court supervises, creditor's meetingsupervises, and special person supervises systems. Secondly it analyzes the existingproblem 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 thenit offers the suggestion of perfecting our country's supervision mechanism, such as thenew bankruptcy law should give a principle regulation to the bankrupt caretaker'sobligation, give play to the role of supervision of the multi-level, pluralistic subject, andset up bankrupt systems of superintendent etc.The sixth chapter gives the suggestion perfecting the bankrupt caretaker's system ofour country .such as change the appellation of clearing group, set up temporary caretaker'ssystem ,change the select caretaker's range , define bankrupt reward of caretaker ,etc. Iwish this paper can be beneficial in the hope of the maturity and perfection to the bankruptcaretaker's system of our country.