On Bankruptcy Trustee’s Civil Liability

Nowadays, many countries have established bankruptcy administrator systemamong bankruptcy law systems, especially Anglo-American countries, of whichbankruptcy administrator system is very sound. After a comprehensive analysis ofaccumulated experience, current state of the nation and the current internationalsituation, bankruptcy administrator system with Chinese characteristics is introducedand established in China’s bankruptcy law systems. This approach is worthy ofrecognition, but the bankruptcy administrator system in China is not complete inmany aspects. However, the civil liability of the bankruptcy administrator is importantand it is often applied in daily routines. In order to put forwards some suggestions toimprove bankruptcy administrator system, this thesis tries to analyze the relatedtheories and bases on the situation of our country.This thesis takes the concept of bankruptcy administrator as key point. Afterthat, method of comparative analysis is applied to analyze several classical theories atpresent. According to China’s present situation, the author thinks that the bankruptcyadministrator should be based on the theory of agency, and at the same timeintroducing the trusteeship to make up the shortcomings of the theory of agency.Among these the most important thing is to solve the problem of the principle statusof bankruptcy administrator to ensure the independence and neutrality.The imputation principle of bankruptcy administrators’ civil liability remains anopen question. One mainstream view is fault principle, and the other view is thatnon-fault principle. The author believes that the bankruptcy administrators’ civilliability should be tortuous liability, so it is reasonable to take the fault principle as theimputation principle of bankruptcy administrators’ civil liability.Because our country doesn’t have a clear determination of wrongs standard ofbankruptcy administrators’ civil liability at present, and judges have wide discretion inthis area. After the analysis of various theories, the author holds the idea that the corresponding investigation and determination should be processed in two steps.Firstly, making sure the defendant’s behaviors should be responsible for the eventwhich is the reason for the damage. Secondly, making sure the behavior or eventwhich has been provided enough evidence whether should be responsible for thedamage or not.Concerning the responsibility of bankruptcy administrators’ civil liability, theauthor holds the idea that if the number of bankruptcy administrator doesn’t change,the responsibility of bankruptcy administrators’ civil liability shall be given priority tojoint liability and supplemented with shared liability, while if it changed, the sharedliability can be applied. If it is difficult to precise the bankruptcy administrators’responsibility distribution, they may share the liability in an equal proportion.Supervision is the subject who should realize the responsibility in the compensation tothe bankruptcy administrator to achieve the goal of realizing the interests of creditors.The bankruptcy administrator makes choices to bear the responsibility according tothe different situations. The balance calculation method should be applied to calculatethe compensation of damages. However, while enacting the related legal standards, acertain amount of discretion should be left to judges.