The Civil Responsibility Of The Bankruptcy Administrator

As an indispensable subject in the bankruptcy proceedings,the bankruptcy administrator plays an important role in the bankruptcy work.At the same time,the number of cases involving disputes over the administrator's responsibility increased year by year.In most cases,the cause of action of the creditor as the plaintiff is mostly related to the duties of the administrator,and the court almost always determines the civil liability of the administrator with tort liability,but the administrator involved in the case usually does not bear any civil liability,resulting in the rights of the interested parties can not get relief.This also exposes the problems in the determination of the bankruptcy administrator's civil liability.On the one hand,the court often overrules the plaintiff's claim by the defendant.On the other hand,the bankruptcy law on the administrator's civil liability of the provisions unknown lead to its liability difficult to determine.Therefore,it is necessary to clarify the nature of the administrator's civil liability,improve the administrator's civil liability system,and protect the interests of interested parties.The civil liability of administrator originates from its duty and obligation.The current law stipulates the duties and obligations of the administrator respectively,resulting in their independence and lack of relevance.In reality,the manager's violation of its obligations is not limited to the manager's dereliction of duty.If the duty of loyalty is not reflected in the provisions of the duties of the manager,the manager's performance of the duty of loyalty will not be regulated.Therefore,it is necessary to clarify the relevant behaviors of the manager violating the duty of diligence and loyalty in combination with the responsibilities of the manager.In order to investigate the administrator's civil liability and remedy the interested parties,it is the first step to determine the subject of liability.The ultimate subject of civil liability of a single administrator can only be an individual or its subordinate institution.The mode of several managers' liability should be based on joint liability and supplemented by share liability.After the change of manager,the former manager and the successor manager should also bear civil liability under certain circumstances.In practice and academic circles,the civil liability identification of the administrator is more inclined to tort liability,but it can not solve the problem of difficult liability identification in practice.The imputation principle in tort liability makes it difficult to protect the right of relief of interested parties.And theadministrator and creditor and debtor signed the administrator service agreement to solve the problem of liability determination.If the manager violates the obligations agreed in the service contract,it shall bear the liability for breach of contract.In the administrator service agreement,the duties of the administrator should be more comprehensively stipulated on the basis of article 25 of the bankruptcy law,and the legal obligations of the administrator should be transformed into agreed obligations.When the service agreement does not stipulate the responsibilities of the administrator,the administrator shall bear the tort liability for its dereliction of duty.In the determination of tort liability,the principle of presumption of fault should be adopted.In addition,the forms of bearing liability should be expanded to include non-property and property civil liability.The administrator is exempt from liability because of the court's permission,commercial judgment,time limitation and the victim's fault.In order to save costs,in some cases the administrator's remuneration may be offset by his civil property liability.