Insolvency Administrator Elective System Of Study

Bankruptcy System refers to a system in which enterprises can resolve the due debts through legal proceedings of restructuring, reconciliation or liquidation etc. in the market competition when they fail to pay off the debts for various reasons. The bankruptcy administrator plays a very important role in the system. Whether the insolvency proceedings can go on justly, equally and efficiently, bankruptcy can get a fair compensation or the legitimate rights and interests of the parties concerned can be reasonably protected during the insolvency proceedings is closely related to the system of the bankruptcy administrator. The elective system of bankruptcy administrator is the primary problem to be resolved in the system of the bankruptcy administrator. And the aspects concerning who to be elected, how to elect, and the election of any artificial bankruptcy administrator will directly determine whether the bankruptcy administrator in the insolvency proceedings exert their duties in a fair, impartial, efficient way or not. Corresponding stipulations about the system of the bankruptcy administrator have been made in the bankruptcy laws in different countries over the world. The bankruptcy administrator in Law of the People's Republic of China on Enterprise Bankruptcy for the first time replaces the liquidation group and the assignment, qualifications, responsibilities, remuneration and other aspects of the bankruptcy administrator have also been specified in this law, which becomes a flashing point of the law. But these points have been put forward for the first time; therefore, there are no experiences to follow for carrying out the elective system of the bankruptcy administrator. Only the practice can examine whether it caters to the economic development of our country or not at the present time.Considering that, the paper demonstrates how to build the Elective System of the Bankruptcy Administrator. Based on the introduction of the legislation and practice of the Elective System of other countries, it demonstrates the legislation status of the system in China and finds out something unperfected. Combined with our actual conditions, it also makes proposals for our legislation attitude and system design we should take. In addition to the introduction and conclusion, this paper is about 45000 characters. It has four parts, each part of main contents as follow:The introduction is a brief description of the origin and meaning of the bankruptcy administrator system. As the bankruptcy administrator is in a significant position in bankruptcy proceedings and plays a leading role in the management of the bankruptcy possession, and also as the buildup of the bankruptcy administrator system is temporary and sophisticated and the bankruptcy administrator, the bankrupt and other parties concerned are closely related. It is of great necessities to establish a scientific and complete the elective system of the bankruptcy administrator. If there is no scientific and complete the elective system, the consequence may be that the person elected is not suitable for being a bankruptcy administrator, which makes the bankruptcy administrator can not take charge of the bankruptcy in a just and reasonable way.The first part is about the legal status of the bankruptcy administrator. And the discussion on this issue is the basis of the arguments in the paper. How to confirm the legal status of the bankruptcy administrator and explain the relationship between the bankruptcy administrator and the other main bodies is an important and controversial issue of the theory. So, before we discuss the elective system of bankruptcy administrator, it is necessary to analyze its legal status. Different theories of legal status of bankruptcy administrator have different answers to bankruptcy administrator elective main bodies. Therefore, the author makes a brief introduction of the surrogate, duty, insolvent consortium and authority and management organization which existing in the theory of continental law. Followed is a brief introduction about the method of introducing bankruptcy law into the trust system and stipulating the legal status of the bankruptcy administrator especially in Anglo-American countries. Finally, there is a comparative analysis of different theories in order to seek more practical significant theories of the legal status of the bankruptcy administrator.The second part analyzes the legislation of the elective system of the bankruptcy administrator in different countries. The existing bankruptcy law identified the bankruptcy administrator system in our country for the first time. Yet due to the short time, many problems may haven't raised, but in some other countries and regions, the elective system of the bankruptcy administrator has been developed relatively perfect. So, the author analyzes and compares the qualification of the bankruptcy administrator, the main body, number, time, acceptance, certificate of election, the change of the bankruptcy administrator and gives the examples from England, France, Germany, Japan, the US and Taiwan area in this legal regulation. This part of argument and analysis has laid the solid rationale for the elective system of bankruptcy administrator system.The third part briefly describes the history of the elective system of the bankruptcy administrator in China, and analyzes the legislation, limitation of the elective system of the bankruptcy administrator and the causes to the limitation. The earliest system in our country was made in 1906. After new China had been established, abrogated all the laws the bankrupt legislation has been in the blank. In 1986, as a result of the reform and the economy need to develop, our country promulgated "the Enterprise Bankruptcy law(Implementation)", but this law did not set up the bankrupt supervisor system, but was originally created the technical terms "liquidation group" which must complete some of the bankruptcy administrator's responsibility. The existing bankruptcy law of China which promulgated and implemented in 2006 introduced the present world vulgate system of the bankruptcy administrator, using comparatively marketable, specialized institutions and individuals to deal with the complicated bankruptcy affair management, and it had many breakthrough in most aspects. However, compared with other countries and regions' the elective system of the bankruptcy administrator, due to the legislator's pursuance of efficiency principle and the paternalistic effect, the system isn't clearly defined the legal status of the bankruptcy administrator and the way and time of practice of the selection , and the stipulation of qualification is slightly defective and so on. So the system has strong administrative color, there are many problems in the judicial practice and the debtor's benefit can't be protected effectively. It needs to perfect in many parts further.The fourth part is about the legislation proposals for improvement of the elective system of the bankruptcy administrator in China. In the preceding discussion, several unsolved problems in the elective system of the bankruptcy administrator have been put forward and most of the problems have been raised after comparison with other countries or regions. Some problems have not yet occurred in the practice of our country at present, but this may be caused by the short-term implement of the bankruptcy law. Since other countries and regions have carried out a lot of measures for solving these problems, and it can be confirmed that our country will also confront with the similar problems in the future practice. Thus attention should also be paid to these problems even if they have not happened here. Therefore, this part in the first place deals with the legal status of the bankruptcy administrator and affirms that our country should make it clear that the trustee theory adopted as our legal status theory of the bankruptcy administrator. Then, it proposes for the following legislative suggestions. Establish the individuals as the bankruptcy administrator, establish the qualification exam system of the bankruptcy administrator, and establish the temporary supervisor system. It also stresses that the meetings of creditor autonomy elects the bankruptcy administrator and the court plays a role in that review. Finally, it makes proposals to other problems in the system, such as the bankruptcy administrator certificate, the right to make averment, the improvement of the system and so on. While propose these suggestions, the author also unites our country's actual situation, expounds the reasons separately why the author puts forward these proposals.The Conclusion geminates the importance of the improvement of the elective system of the bankruptcy administrator.Certainly, "Enterprise Bankruptcy law" just put in force six months ago. The legislators are impossible to carry out the revision immediately to this law, but for this law implementation, the interrelated judicial interpretation will appear one after another. If we profit from the overseas advanced legislation experience, consummate the bankruptcy administrator system in the bankrupt procedure, it will propel our entire society's development forward, thus, the significance of the paper will be extremely profound.