Research Of Bankruptcy Fraud

As competition the feature of market is growing along with the rapid development ofChina’s market economy in recent years, a large number of companies go bankrupt in thefittest, and appearance of a large number of bankruptcy crimes becomes inevitable. Among allthe bankruptcy crimes, false bankruptcy crimes are the most serious and typical. The CriminalLaw Amendment (Six) added false bankruptcy acts into crimes. For the first time fraudbankruptcy acts are regulated, reflecting the economic progress and perfection of criminal law.However, false bankruptcy crime is under endless dispute, since the implement of theAmendment. Therefore, this article is to give a more comprehensive and systematicexposition on the crime of false bankruptcy. Before writing, the author collected documentsrelated to the crime. The thesis is a more detailed and comprehensive discussion of the falsebankruptcy crime, integrating theory with practice, through comparative analysis, empiricalanalysis and application study on comprehensive analysis methods.This article is divided into four parts, which are independent and interconnected in themeantime, the main content of the four parts are as follows:Part Ⅰ: introduction to the false bankruptcy legislation. In this section, the author firstintroduces the legislation on crime of false bankruptcy abroad. By researching into British andAmerican’s laws as typical of common law system, Germany and Japan’s laws as typical ofcivil law system, analyze and summarize the characteristics of false bankruptcy crimes inthose legislations. In the second section of this part, the author analyses the background offalse bankruptcy crime legislation in China, elaborating on the practical significance ofprescribing the crime, and the certain characteristics of the legislation times; demonstratingthe current legislation of false bankruptcy crime so as to lay foundation for the interpretationof law in the second part and for the legislative perfection proposals after deep and systematicexposition in part four.Part Ⅱ: interpretation of false bankruptcy crime in law. In this part, the author has newmethod of interpretation on false bankruptcy crime. First "bankruptcy" has been expanded andexplained for generalized bankruptcy, including bankruptcy, reforming and reconciliation;second false bankruptcy has been expanded to "really bankruptcy, fake skip of debts",breaking through the original limited method of "fake bankruptcy, really skip of debts "; Bythe convergence of the provision of the crime and Bankruptcy Act, interpret the act of the crime, mainly focused on interpretation of "other transfer acts of disposition of the property”according to the prescriptions of revocation and invalidation under Bankruptcy Act; lastlydemonstrating the nature of "serious prejudice to the interests of the creditor or any otherperson" is the result element of the crime. Interpretation of the crime in this section is laid upfor exposition on legislative perfection in part four.Part Ⅲ: analysis difficult problems of false bankruptcy crime. This part discussesdifficult problem of false bankruptcy crime one by one. Firstly, analyze on the purpose of thecrime: whether or not false bankruptcy crime should have purpose of skipping debts, illegalpossession of property, and whether or not false bankruptcy crime is purposely committed.Secondly, discuss problems of escaping bank debt of enterprises. The escaping act constitutesfalse bankruptcy crime, loan fraud crime or contract fraud crime. Lastly, discuss theboundaries of false bankruptcy crime and similar crimes of it. Specifically analyze thedifference between the false bankruptcy crime and crime of disrupting liquidation and of theoccult, crime of intentional destruction of accounting vouchers, accounting books, financialand accounting reports.Part Ⅳ: the legislative perfection of false bankruptcy crime. The last part of the thesisanalysis legislative perfection by elaborating on negligence and suggestion of falsebankruptcy crime legislation. The first section is the analysis of legislative negligence: ilimitation of the provision of “skipping debts in the name of false bankruptcy”; ii uncertaintyof act elements of the crime; iii lack of critical period; iv limitation of scope of the subjectelement; v limitation of legal penalty. Based on the negligence, the second part targeted forlegislative proposals: i change the implementation of “false bankruptcy act" to "bankruptcyfraud act"; ii complete the provisions of act element; iii stipulate explicit critical period; ivexpand the scope of subject element; v improve the legal punishment provision.