On The Regulation Of Transferring Cases To Bankruptcy Review In Bankruptcy Startup

On February 2015,the application of the "PRC Civil Procedure Law" interpretation of the Supreme People's Court promulgated the "(hereinafter referred to as the" Civil Procedure Law",for the first time in China to explain)formal enforcement cases transferred bankruptcy review(hereinafter referred to as "executive breaking program")regulation.China's first formal hold turn breaking procedure regulation.In February 2017,guiding opinions on Several Issues concerning the transfer of bankruptcy cases to review the implementation of the Supreme People's court "(hereinafter referred to as" guidance "),more clear and detailed provisions of the transformation and procedures of bankruptcy.The court executive program from breaking to set up,the main market,the corporate will have the opportunity to get medical treatment,can also exit in accordance with the law;from the judicial system,can alleviate the difficult situation difficult to start and the execution of bankruptcy;From the point of view of protecting the interests of creditors and debtors,the legitimate rights and interests are also fair protection,safeguard judicial authority and judicial credibility;from the system design point of view,the first to start a new bankruptcy mechanism,application mode from the party,to assist the court authority model.There is no doubt that the Supreme People's court for the establishment of the implementation of the transfer of bankruptcy system,whether it is judicial practice,or the theoretical value,are significant,far-reaching significance.Design of the system in the implementation of the bankruptcy court to turn on,the authority of a court to inform the parties voluntarily agree with the way the so-called "semi authority"bankruptcy start mode,is in the case of execution can not be the case,the court of execution to the bankruptcy procedure,judicial activism certain,but the court's interpretation,to guide the parties to inform the behavior of a limited role,whether the enforcement cases transferred to bankruptcy,the final decision or parties.In judicial practice,based on their own interests,whether the creditor or debtor,would rather not perform,is still not willing to apply for bankruptcy,seriously affected the operation and implementation procedures to break the hold,"authority" to break the hold mode,did not reach the expected effect in practice.In addition,in the implementation of the system of participation in distribution,because in the implementation of the subject of any expansion,the enterprise legal person involved,"first to the first implementation of the principle of" more attracted to the choice of the parties in the practice instead of the implementation of the bankruptcy system,seriously affect the hold turn the effective implementation of the bankruptcy system.As two kinds of different system of creditor's rights,the bankruptcy procedure can realize the fair settlement of all claims.The two programs are not diametrically opposed to each other,but to interact with each other.In order to improve the court hold turn from the broken system,expand the scope of bankruptcy subject aggravated responsibility,set up an effective incentive system to start,turn the court hold breaking process obligation to inform in advance to the implementation of the acceptance of the case,to turn between mandatory liquidation procedure,to solve the cost burden to break and the construction of the court in accordance with the procedures the authority to start breaking hold turn procedures put forward the improvement suggestions,hope is helpful to the system development.