Study On The Duty Of Diligence And Loyalty Of The Bankruptcy Administrator

An empirical analysis and study of 151 judicial cases since the promulgation and implementation of the enterprise bankruptcy law shows that the number of cases in which the bankruptcy administrator violates the duty of diligence and loyalty is increasing day by day,and the cases have spread all over 24 provinces,autonomous regions and municipalities directly under the central government in China,and have a proper scale in some regions.With the promulgation of the enterprise bankruptcy law in 2006,the bankruptcy administrator system in China's law has been established,and the legislative gap of the duty of diligence and loyalty of the bankruptcy administrator has also been filled.In addition,the judicial trial of the case reveals the inadequacy of the regulation of the duty of diligence and loyalty of the bankruptcy administrator in the enterprise bankruptcy lawAt present,in the observation of the case of the duty of diligence and loyalty of the bankruptcy administrator,it is difficult to define the duty of diligence and loyalty and to distinguish the specific forms of fault in judicial practice.The reasons are not clear about the legal status of the bankruptcy administrator,the duty of diligence and loyalty,and the form of fault of the bankruptcy administrator.It is imperative to improve the system of the duty of diligence and loyalty of the bankruptcy administrator.First of all,in view of the gains and losses of judicial practice and theoretical research in various countries,the legal status of the insolvency representative should be positioned as "trustee",according to which the connotation of the duty of diligence and loyalty of the insolvency representative should be clarified,and the cornerstone of judging the duty of diligence and loyalty of the insolvency representative should be laid.Secondly,for one thing,based on the purpose and responsibility of the bankruptcy administrator in the law of our country,through deepening the understanding of the provisions of the current law,the feasible judgment standard of the diligence and loyalty duty of the bankruptcy administrator is dug in,for another,the existing experience of the adjacent law is extracted,and the judgment standard of the diligence and loyalty duty of the directors is drawn on.In addition,in the determination of the bankruptcy administrator's fault of violating the duty of diligence and loyalty,we should strictly distinguish intention,gross negligence and general negligence.In view of the imperfection of the current bankruptcy administrator system and the immaturity of the bankruptcy administrator team,the subjective fault of the bankruptcy administrator who violates the duty of diligence and loyalty should be understood as intention and gross negligence,so as to establish a hierarchical and orderly fault liability system.