A Study On The Linkage Mechanism Of The Procedure From Execution To Bankruptcy

Under the background of comprehensively and basically solving the problem of difficult execution,the supreme law issued judicial interpretation to stipulate the system of execution transfer to bankruptcy review.The procedure of transferring execution to bankruptcy refers to the legal system in which the people's court finds that the debtor enterprise,as the executee,cannot pay off all debts in the process of implementing monetary claims,and then,with the consent of the parties concerned,transfers the execution case to the bankruptcy department for examination through a certain procedure conversion mechanism,so as to start the bankruptcy procedure to deal with the disputes over claims and debts.The value orientation of the execution procedure and the bankruptcy procedure is to realize the creditor's rights and interests of the parties.The connection of the two has a natural internal basis,as well as the corresponding economic,social and judicial basis.Improving the system construction of the connection between the execution and the bankruptcy procedure can not only guarantee the realization of the individual's legitimate rights and interests,help to solve the difficult problem of execution,but also improve the start-up and application rate of the bankruptcy procedure.It is beneficial to safeguard the public interest,save judicial resources and promote the construction of a good market economy environment.At present,the provisions on the procedure of conversion of execution to bankruptcy are specified in the judicial interpretation of civil procedure law,and there are specific details in the guiding opinions on conversion to bankruptcy.However,due to the relative vagueness of the specific procedures,the high courts all over the country have issued the corresponding working rules in judicial practice,and the technical inconsistencies of the local implementing rules for the treatment of the articles of law have also led to the destruction of the unity of the enforcement and breaking system.In addition,the court lacks the right to start the procedure in accordance with its authority,and the current system of participation in distribution also blocks the application of the procedure.At present,there are many judicial situations,such as the large number of cases that can't be executed,the lowapplication rate of bankruptcy procedure and enforcement breaking procedure,the low willingness of the parties to apply for the commencement of enforcement breaking procedure,the failure to close the case at the end of this procedure,the imperfect specific provisions of relevant supporting measures and the abuse of enforcement breaking procedure,which make the enforcement breaking procedure with low application rate unable to play Its due system value.By learning from the experience of foreign legislation and summarizing the judicial practice of our country,we should perfect the connection mechanism of the procedure from execution to bankruptcy in our country from the following aspects:establishing the relevant mechanism to stimulate the willingness of the participants to start the procedure,and stimulating the creditors and debtors from the aspects of strengthening the establishment of the information-based bankruptcy platform,strengthening the publicity of business information and setting up the bankruptcy assistance fund Enthusiasm;build a way to start the execution breaking procedure according to the authority,give the court a certain right to start the procedure under the premise of the party's application doctrine,and improve the relevant authority provisions;break through the institutional barriers to the start of the execution breaking procedure,establish a case preparation mechanism for participating in the distribution system and the property review of the final system;improve the specific procedural provisions and supporting facilities of the execution breaking procedure Measures are to strengthen the detailed provisions of specific procedures,improve the remuneration system of managers,improve the professional ability of court judges and establish a special trial agency for breaking the execution,promote the establishment of the summary procedure for breaking the execution,improve the mechanism to prevent the abuse of the procedure in judicial practice,etc.So that the value of the procedure can be brought into full play to promote the healthy and orderly development of China's market economy and the construction of the rule of law.