Balance Of Interests In Bankruptcy Legal System

The bankruptcy law is an important system for enterprises’ exit of the marketcompetition, it is also an important tool for the balance of the debtor, creditors,shareholders and employees’ interest in the corporate bankruptcy stage. This thesisaims to discover the defect of our bankruptcy law, and thereby to give some advice inorder to perfect our bankruptcy law.The full text is divided into four parts:The first part is the basic theory of the balance of interests in the bankruptcy law.Interest is an eternal human areas, particularly after we have introduced the marketeconomy system, the tendency of the interests of diversity is more obvious. Under theguidance of the market economy law, the bankruptcy law has provided the system forthe enterprise of exiting market orderly, promoting the financial development andstability, and promoting economic resources to optimize the value of the configuration.Particularly in the period of transition to a market economy in China, the changingeconomic environment and the bankruptcy situation requires us to attach importanceto the interests balance of the bankruptcy law.The second part is the analysis of insolvency interests balance of the maindeveloped countries and the revelation for us. This chapter first analyses thebankruptcy interests balance of the United States, Britain, Germany form the aspect ofthe preservation of property, bankruptcy reorganization, executives and shareholders’responsibility for the insolvency proceedings, bankruptcy liquidation order and theadministrator of the bankruptcy system, presented a more comprehensive bankruptcylaw of the developed countries on specific rules. Accordingly, we should firststrengthen the supervisory powers of the creditors and the court to the act ofbankruptcy, at the same time we should protect creditors of autonomy, focusing on theconsolidated balance the interests of the judge’s discretion. Secondly, we shoulddesign and use bankruptcy reorganization system rationally form the aspects of appointment of administrators, the program conversion and the court-direction. At thesame time, we should enhance the convergence of the bankruptcy system and othersystems, improve bankruptcy responsibility system and establish the administrator’squalification system, hew to accountability mechanisms.The third part is the analysis of the interests balance of China’s bankruptcy law.Bankruptcy Law of China set up both the Bankruptcy revocation system and acts ofbankruptcy invalid system compared to other countries of the world. I believe thatacts of bankruptcy invalid system should be abolished. The provisions of bankruptcylaw on executive responsibility is not specific enough and lack of maneuverability.What’s more, the shareholders’ responsibility provisions are missing, nor do werealize that the value of the accountability of the shareholders. The bankruptcypetition withdrawal does not consider the court’s right to review. We also didn’tconsider the cost of implementation of the secureclaims, and did not take into accountthe specificity of infringement claims. The election of managers did not adequatelytake care of the creditors’ will, and the administrator’s responsibility is too strict to thepreform the functions and powers of managers, and ultimately harm the interests ofthe creditors.The fourth part is the main part of this article, and is about how to improve andperfect China’s bankruptcy law. During the system design, we should be guided by theprinciples of “interests of self-government and law enforcement balance”, the“creditor principle of autonomy” and “the maximizing of overall interests”. There isan overlap between the bankruptcy act invalid system and the revocable behaviorsystem, so we can eliminate the bankruptcy act invalid system, also there is nosubjective malicious term in the revocation provisions, and the revocation ofcompulsory execution is also missing, we should perfect it. The bankruptcyreorganization proceedings is to save the debtor’s interest at the expense of the limitthe interest of the creditors, so we should coordinate the court of public power andthe protection of the interests of creditors and the autonomy of the private law. Thenwe should refine the executive responsibility and the shareholders’ responsibility andto establish the crime of “escape bankruptcy”. Insolvency law provides that a bankruptcy petition may be withdrawn, but it should endow the right of court review.We could establish the bankruptcy cost estimate system before the bankruptcyproperty distribution, give tort creditors to achieve a straight right to prosecute theexecutives or shareholders to protect infringement claims. Managers supervisingpower should be renamed the "report" system as " consent "system, and the provisions130of the managers responsibility is too strict and should be weakening. Finally, thisarticle refined and revised the provisions of the China Bankruptcy Law.