On The Judicial Function In Bankruptcy And Reorganization Proceedings

On August 27^th,2006,the 23rd meeting of the 10th National People's Congress Standing Committee adopted the People's Republic of China Enterprise Bankruptcy Law,which will start the implementation since June 1^st,2007.The new Enterprise Bankruptcy Law creatively prescribes the national bankruptcy restructuring system,which entitles the enterprise bankruptcy law with the ability to rehabilitate and save the enterprises.Because of the presence of Restructuring System,the National bankruptcy law established its target as based on the interests of the society,to make the social and public interests equal to the interests of both debtor and creditor.Therefore,the interest of the society has become one of the cores which the Bankruptcy Law concerns.Furthermore,as the Bankruptcy Law contains the concept of Economic Law,the Bankruptcy Law makes some demand on the judicial functions of the court.As the core of the Bankruptcy Law Center,the restructuring system,make even more intense demand on the judicial functions due to its own specificity. On the other side,the feature and limitation the of the bankruptcy restructuring system itself claim the new challenges on the court judicial functions.In the present situation,when the new Enterprise Bankruptcy Law has not yet made out perfect operation methods and provisions on the functions of the Court during the exercise of the restructuring system, how should the people's courts handle the challenges,and how to execute judicial functions during the bankruptcy restructuring procedure become the theoretical problem which the People's Court should solve at the beginning of the implementation of the new Enterprise Bankruptcy Law. Following the execution of the new law,the bankruptcy case are on a increasing trend,such as the Chuangchun city Chun-Lanbao bankruptcy restructuring case,how should the court execute its judicial functions in the increasing bankruptcy restructuring cases,realizing the restructuring target becomes an significant practice topic.Therefore,this thesis compares the specific provisions in the new Bankruptcy Law with the mature bankruptcy restructuring regulations overseas,aims to discuss to solutions on how the court should execute its judicial functions in the bankruptcy restructuring process.The first part of the thesis expatiates the basic theory of the Bankruptcy Law demands on the judicial functions and how should the Court deal with the Bankruptcy Law demands.This part discusses the Bankruptcy Law's demand on judicial functions according to its objectives and economic law attributes,and makes a brief introduction on the Court's judicial functions.This part provides the theoretical background of the Bankruptcy Law's demand on judicial functions and the courts' judicial functions supply to the Bankruptcy LawThe second part of the thesis explains the reason why the restructuring system,as an integral part of the bankruptcy system, especially requests the execution of the judicial functions.This part focuses on the institutional drawbacks of the restructuring system itself, these drawbacks posed a challenge to the judicial functions of the Court, which are:Restructuring procedures activation restricts the rights of creditors,Restructuring procedures restricts the rights of to the guarantor, the possibility that selection of restructuring executives may hurt the interests of the creditors,the possibility that restructuring plan may hurt the interests of the creditors,and the challenges which could happen under these four cases to the Court juristic functions.Therefore,it delivers the key topics on how the Court should deal with the challenges, and how to exercise the judicial functions during bankruptcy restructuring process.The third part of the thesis outlines the exercise of judicial functions during bankruptcy restructuring process in Britain,the United States, Japan and France.Then,it analyzes the Court's judicial functions in the foreign bankruptcy restructuring process,focusing on the following four aspects:the court's functions in the case re-application,the court's functions in restricting sponsion security interests,the court's functions in the restructuring candidate selection,and the court's functions in the restructuring plan approval. The fourth part is the core of this thesis.Based on the national newly adopted Enterprise Bankruptcy Law,it analyzes how the courts should exercise the judicial functions focusing on the four aspects in part two, which are the court's functions in the case re-application,the court's functions in restricting sponsion security interests,the court's functions in the restructuring candidates selection,and the court's functions in the restructuring plan approval.The author includes the detailed operation methods of the new law's operational part,also points out the provisions and defects which make the new law may not be able to practiced,and then the author gives out her own solutions which may be immature, wishing that it could be referred by the judge and court during the application of the new law restructuring process.The motivation of the thesis is from the introduction of the new Enterprise Bankruptcy Law and the innovative provisions on bankruptcy restructuring system,the courts and the judges' confusion and suggestions to the new law.It aims to summarize the methods applicable to the new law,also points out the obstacles during the law practice and her solutions.This thesis focuses on the new restructuring regulations in the new Enterprise Bankruptcy Law,and how the court should exercise its the function.The thesis comments on the breakthrough part of the law, which facilitate the court functions,and summarizes the specific operation methods of the Court;the provisions of the new law provision which does not facilitate the court function are also reviewed,and the author gives her own constructive comments,and expects more professional solutions on this topic.