Research On The Transfer From Execution Proceedings To Bankruptcy Proceedings

Realizing and assuming claims and debts in time and without a hitch is the basis of the normal market economy order.In case of failure to automatically achieve the claim-debt relationship,the state power will come into play,mainly in the form of execution and bankruptcy in countries under rule of law.The execution-to-bankruptcy system(the System)connects execution and bankruptcy proceedings,instead of a separate operation to materialize good cooperation and mutual symbiosis between the two.This system aims to handle long-pending execution cases,solve the difficult execution,and escalate up the efficiency.It is also designed to play a significant and far-reaching role in guiding market players to build the sense of risk-bearing responsibility,unceasingly updating the concept of bankruptcy,and perfecting the rescue and withdrawal mechanism.This paper expounds and interprets the basic theory and relevant regulations of the transfer from execution proceedings to bankruptcy proceedings(the Transfer)from the procedural law,goes into the operation of the System using rich practical data,and raises advice to the problems in China grounded on the beneficial foreign experience.In addition to the introduction and conclusion,this paper is arranged in four chapters as follows.Chapter one is the introduction of the Transfer.In this chapter,the System is briefed in three aspects using available research results in China.Firstly,connotation interpretation.We,from the realistic context of China,deeply analyze the feasibility and necessity and summarize five characteristics of the System,as well as define the Transfer.Secondly,system analysis.We demarcate and dissect the relations between the Transfer with participating in the allocation system and terminating the execution system.Thirdly,function reveal.We,rooted in fundamental execution and bankruptcy principles,explain that the System functions in releasing the efficiency of execution proceedings,balancing the interests among all parties,ensuring the fair repayment of claims,and optimizing the allocation of market resources.Chapter two relates to the status quo and problems of the Transfer.The existing regulations and judicial practices in China are selected as the object of investigation to find out practical issues.Firstly,the existing regulations are collated and interpreted from commencing subject,applicable elements,competent court,process,and supervisory control.Secondly,on the one hand,by summarizing the practice situation,we find that the number of bankruptcy cases in China has increased substantially,the practical development is unbalanced,the internal division of labor in the court has been adjusted,and the construction of bankruptcy information has been upgraded;on the other hand,by researching and summing up typical cases,we investigated the main types of the Transfer cases and judging views of some courts on related matters.Finally,we reveal and analyze problems in the Transfer,mainly including low effect level and insufficient authority of relevant provisions;weak commencement and poor proportion of successful transfers;chaos in application and great difference in practice in different regions;incomplete connecting mechanism,dull operation of proceedings and single supervisory mechanism.Chapter three concerns about the investigation and inspiration of the Transfer in foreign countries.In this chapter,we take the legislation in the U.K.and Switzerland to compare their regulations and practices and draw some useful lessons.We compare the connection of enforcement to creditor’s bankruptcy application in the U.K.and the connection of debt execution and bankruptcy proceedings with that in China horizontally to analyze the similarities and differences;consequently,three beneficial improvement inspirations are summarized,i.e.enhancing the operating efficiency of the System,strengthening the compulsory requirements of executing judges and reinforcing the protection of the rights of the parties and outsiders in the cases.Chapter four involves the improvement of the Transfer.In this chapter,in line with the thought of combining macro guidance with measures,we aim at offering advice to improve the System in China.First of all,three improvement principles are established,including combining execution proceedings with bankruptcy proceedings,giving priority to bankruptcy,unifying efficiency and justice,and pursuing proportionality.Secondly,guided by these three principles,we propose some improvement measures,including:enhancing the effect level of relevant provisions,optimizing the mechanism to commence proceedings,establishing unified applicable conditions,perfecting the connecting mechanism,giving equal consideration to efficiency and justice,and maturing the supervisory mechanism.Finally,successfully operating the System also requires three supporting measures,i.e.classifying all cases into complex and simple ones for better bankruptcy proceedings,developing a scheme to reasonably share the related expenses,and perfecting the social credit system whilst building an information sharing platform.