Research On The Start-up Model Of The Procedure Of "deviation From Obligation" In China

The procedure of bankruptcy examination for the transfer of civil execution cases(hereinafter referred to as the procedure of "leading to breaking")is an important innovation of China's civil execution system.On the one hand,the procedure of "execution and diversion" can help the court solve the difficulties in execution,deal with the backlog of cases that cannot be executed,and protect the rights and interests of the parties concerned.On the other hand,the connection between customs clearance and bankruptcy will remove "zombie enterprises" from the market and improve the withdrawal mechanism of market players.The first problem of the execution of the case transferred to bankruptcy review is the connection between the execution and bankruptcy,and the starting mode of the procedure of "diversion" is the most critical point in the procedure connection,which is an important guarantee for the effective implementation of the procedure.However,under the applicationism start-up mode,the procedure is difficult to start,the application rate is low,and the system function cannot be effectively played.Based on this,on the one hand,we grasp the function orientation and value attribute of the execution procedure and the bankruptcy procedure from the theoretical level,so as to determine the institutional attribute of the procedure of "execution to break".On the other hand,the problems encountered in the practice of the program startup mode are sorted out and analyzed,and the feasible operation mechanism is put forward to create a feasible startup mode.In this paper,the starting mode of "breaking through persistently" in China is taken as the breakthrough point,and discussed through five parts,as follows:The first part is a basic overview of the startup mode of the "stubborn break" program.Firstly,this paper analyses the basic provisions of startup subject and startup condition startup review,and expounds the existing theoretical disputes;secondly,it analyses the theoretical classification of startup mode;finally,it draws the conclusion that it is necessary to perfect the startup mode of "break-through" procedure in our country from two aspects: the inevitable choice of guaranteeing fairness and the need to perfect the withdrawal mode of market subject.In the second part,the author analyzes the existing problems under the starting mode ofthe procedure of "leading to breaking" in our country,from two aspects of legislation and judicature.In terms of legislation,it only stipulates that the party concerned can apply for initiation.The subject of initiation is single,and the protection of the subject's rights is not perfect.In judicature,the author analyzes the reasons why the subjects are not willing to start the procedure,the influence of the implementation and participation in the distribution to expand the application,and the lack of specialized hearing institutions.Through the analysis of this part,for the following to make perfect Suggestions pave the way.The third part analyzes the relevant provisions of the startup mode of the overseas countries' execution of the bankruptcy transition and the enlightenment on the improvement of the startup mode of China's "execution transition" procedure.Through the analysis of the initiation of the execution of the bankruptcy proceedings in Switzerland,France,Germany,the United States and the United Kingdom,it is concluded that China should improve the procedural cohesion mechanism,pay attention to the public authority's intervention in the initiation mode,pay attention to the protection of the rights of the parties,and build a special hearing institution.In the fourth part,the author puts forward some Suggestions to improve the starting mode of the procedure.Through the study of the actual situation of the start-up mode of the procedure,this paper puts forward the conclusion that China should adopt the eclecticism startup mode.And by endowing the court and the procuratorial organ with the starting power of the procedure,broaden the starting subject;Improving the protection of the rights of the parties through legislation;Perfect the procedural cohesion by endowing the new content of the right of execution review;By establishing a special bankruptcy court,the transfer of cases under the mode of eclecticism can be improved.Through the establishment of the implementation of participation in the distribution of the record review system,eliminate the impact on the "bailiff to break" process to start,in order to improve the "bailiff to break" process to start the model to provide useful reference.