The Improvement Of The Execution To Bankruptcy Convergence Mechanism

Article 513 to Article 516 of judicial interpretation of the Civil Procedure Law which is promulgated in 2015 formally established a system of execution to bankruptcy convergence mechanism.It opened the way for turning the execution cases into bankruptcy proceedings,which has important meaning for the liquidation of the case and the hard settlement of bankruptcy proceedings.But four articles are only principled and general provisions,it still needs to be filled with more comprehensive provisions and need to be assisted with more improved the supporting measures and incentives.As for the outdated provisions and ideas,they should be abandoned resolutely.To this end,by combining with the judicial practice around the court and searching from the analysis and causes of problems,the author propose some specific ideas about how to improve the implementation of execution to bankruptcy convergence mechanism.This paper mainly consists of five parts.The contents are as follows:The first part is the analysis of the legitimacy about the execution to bankruptcy proceedings.First of all,it makes an accessible understand about the function of each two programs from the perspective of the “public fish ponds” theory.And then,this paper makes a detail expounds about their operating mechanism from the perspective of jurisprudence.And it pointed out that they are both compensation mechanism with a symbiotic interaction.But due to the procedural and functional differences,the two should perform their own duties and be able to make a smoothcohesion under certain conditions.The second part is the analysis about the status of inadequate supply of the execution to bankruptcy convergence mechanism.First of all,the provisions in legal dimension are under the vacuum zone and mostly,they can only be followed by the judicial interpretation of the Supreme Court.And then secondly,the supporting policies and the supplementary mechanism which can promote the executed enterprises to turn into the bankruptcy step are not perfect,and in addition,the linkage mechanism of the relevant government departments is not perfect.Finally,the bankruptcy judicial resources of the courts in our country are not sufficient and it lacks quantitative incentive mechanism for the judges of the bankruptcy.So it causes to the lack of enthusiasm for bankruptcy cases.The third part is the in-depth analysis about the difficult start of the execution to bankruptcy proceedings.And point out that because of the reasons on social concepts,interests,accountability and other,the subjects who has the right to apply for the commencement of bankruptcy,such as creditors,debtors and the executed enterprises and other subjects with liquidation responsibility are all unintentional to start the bankruptcy.At the same time,the commencement of bankruptcy proceedings also encountered with public power barriers.The local government resists bankruptcy for the consideration of administrative targets and stability.Due to lack of judicial resources,the local courts can hardly cope with executive demand about the execution to bankruptcy proceedings,and good administrative preferences will also affect judicial judgment.So the final choose is to break the“green light”for execution to bankruptcy proceedings.The fourth part puts forward some concrete ideas on how to perfect the execution to bankruptcy convergence mechanism.Firstly,it needs to improve the start-up mechanism,such as expanding the subjects with the right of bankruptcy petition,including the creditor and debtor-related personnel other who can have the right to apply for bankruptcy.And it can also be considered that giving the rights of bankruptcy filing to supervision department and tax authorities of the enterprises.Then it can force the debtor and related subjects to apply for bankruptcy by theimproved incentives and disciplinary mechanisms.What's more,it gives a reasonable definition to the duty of explanation of the enforcement and bankruptcy proceedings link-up system and sets the scientific decision of the execution to bankruptcy proceedings and hearing procedures to ensure the continuity of the execution to bankruptcy convergence mechanism.And finally,build a supporting mechanism and quantitative incentive mechanism which can assist the execution to bankruptcy convergence mechanism and improve the linkage mechanism,including simplified bankruptcy proceedings to achieve a simple diversion,the introduction of bankruptcy fee mitigation system,the establishment of temporary managers system,the establishment of a reasonable quantitative performance appraisal mechanism,and the construction of external information sharing platform and linkage disposal platform.The fifth part is the analysis of two major issues on the current academic and practical attention.One is where should the distribution system go which prevent the successful implementation of the execution to bankruptcy convergence mechanism.This part will start from its source and function positioning,and then it will analyze the advantage and disadvantage in its judicial practice.Then it pointed out that the distribution system still has its applicable space under the current limited bankruptcy legislation,but its application should be strictly limited.After our China adopts the general bankruptcy legislation,the participation in distribution system should be completely abolished.The second is whether the court should start the enforcement of the execution to bankruptcy proceedings with its authority.In this part,it firstly introduces three basic operation modes,they are that application authority principle model and eclectic model,and then it sorts and summarizes the positive and negative points of academic and practice field' supportive or oppositional view.Finally,it demonstrates that our court should not be ex officio to start the execution to bankruptcy proceedings from the theoretical and practical point.