The Research On The Crime Of False Bankruptcy

The author first introduced the topics of theoretical and practical significance,because false bankruptcy is the additional charge, we must understand before writing this crime as well as topics of significance; The emergence of any one crime is not only a profound times,also has a certain historic and world-wide. The author writes this paper with a more comprehensive and systematic exposition, has reviewed all the literature related to this crime before write it.Bankrupt have gone from guilty to innocent. The crime of bankruptcy fraud is the most serious and typical crime of the bankruptcy act, which is stipulated by many counties in Continental legal System and Common law System. China’s criminal legislation relating to bankruptcy started later, and is imperfect. The punishment is not very tough for the crime. With the economic development, more and more companies and enterprises are bankrupt for the purpose of dodging the creditors. On the basis, the crime of false bankruptcy is set in the Criminal Law Amendment(Six).It has filled in the blank of attacking the bankrupt fraud of original criminal law.The crime of false bankruptcy means the companies and enterprises are in the breach of bankruptcy law and relevant laws, regulations within a certain limited period on the purpose of false bankruptcy declaration, adopting property concealing, fictitious debt undertaking or transferring the property by other means so as to make up the reasons of false bankruptcy, which will make a serious damage to the interests of creditors or other person’s interests.This crime is the milestone for the bankruptcy crime. Generally speaking, some western countries have fairly well developed commodity economy which bankruptcy law has gone through hundred years of development. These countries have an extremely completed legislation for bankruptcy and the crime of bankruptcy. There is seldom description as "the crime of fraud bankruptcy instead of the "crime of false bankruptcy" in foreign countries.Partl:In this part, the author analyses the legislative background for the bankruptcy crime, the legislative process, and the change in legislative thoughts after the founding of P.R.C, then comes to a conclusion that why the crime of the false bankruptcy is necessary in our country.Part2:This part is important of this paper. The author studies the crime from all sides. The object of the crime of false bankruptcy include the bankruptcy order and the legitimate rights and interests of creditors or other relevant persons, the bankruptcy order is the main object. The subject of the crime is the debtor; the debtor must be a company or enterprise who has a legal personality. The debtor must hidden property or assumes a fictitious debt or move away or dispose property through other means and then file for bankruptcy with a direct intent to evade debt, as a result seriously damage the legitimate right and interests of the creditors or other relevant persons through the implementation of false bankruptcy. By researching the objective aspect, the subject aspect and so on, in combination with the other’s point of view, the author promotes her point of view, and then demonstrates it. During judicial the crime of false bankruptcy, we can consult the stipulation of law, when the behavior of company or enterprise harmful to interests of the creditor or other people seriously. If the number comes to ten thousand, we should prosecute it. However as the economic development, whether the standard is still adapt to the present need, the question is still needed the relevant legal departments to deal with it.Part3:In this paper, the author cites many laws and regulations about the behaviors of the false bankruptcy in foreign countries, such as in Japan, Germany and so on. By comparing the crime of false bankruptcy with the crime of fraud bankruptcy in foreign countries, we can see the disadvantages in the crime of false bankruptcy in our country. For example, the objective actions of criminal are too simple; the application and the sole penalty of the legalization for the crime subject are too narrow.Part4:In this part, Firstly, the author researches some questions in this crime, such as what kinds of behaviors constitute an offence, the differences between the crime of false bankruptcy and the similar crime and so on. Then the author does some research about the fraudulent activities which take place in the real bankruptcy or have not yet been carried on into bankruptcy proceeding or not seriously damage the legitimate rights and interests of the creditors or other relevant persons.Whether the third person can become this crime’s companion is an question needed intensive study.Part5:In this part, the author proposes the legislative omission, including the critical period in this crime, whether negligence can constitutes this crime or not, the theme of the limitations of the crime, In reference to other relevant national legal provision as well as full understanding and analysis of China’s actual conditions the law based on, then offer some proposals to improve this crime.Part6:This part is the summary and ending, which states significance of the crime of false bankruptcy, and proposes some suggestions. Legislation on bankruptcy crime in our country still needs to improve, such as specifying the time frame the crime of false bankruptcy, expanding the scope of crime subject, and adding a few bankruptcy crimes.