On The Fiduciary Duty Of The Bankruptcy Administrator

The bankruptcy administrator system is an important system in China’s bankruptcy law.It was formally established in the 2007 bankruptcy law.Its scope of coverage includes three major procedures in bankruptcy law: liquidation,reorganization and reconciliation.It is recognized as a promotion of bankruptcy proceedings.Optimizing the structure of bankruptcy interests plays an important role.Because the reconciliation system emphasizes party autonomy under the limited participation of the judiciary,the role of the administrator in it is relatively weak and is beyond the scope of this article.In the liquidation and reorganization,there is a shadow of the bankruptcy administrator everywhere.The refinement of the administrator ’s function and its concrete practice are also demonstrated in the process of program advancement.However,the effectiveness of this institutional structure with legislative expectations in legal practice is not satisfactory.It has not been able to exert its institutional ambitions in the legal function of many cases.From a broader perspective,the strong position of creditors even makes the bankruptcy administrator only acts as an insolvency program executor and cannot fully and effectively perform its "expert" governance function.Observing from the perspective of the occurrence of science,the main reason for the defects lies in the lack of incentives and unclear responsibilities of the administrator system.In comparison,the fiduciary duties has the typical function of both restraint and incentive,which is enough to reinforce the shortcomings of the administrator system.This paper combines the bankruptcy administrator system with the theory of fiduciary duties,and discusses the legal basis of the bankruptcy administrator under the norms of fiduciary duties,and its concrete performance in practice.This article is divided into five parts,the brief description includes:The first chapter analyzes the reasons for the fiduciary duties by analyzing the theoretical basis of the fiduciary duties,including the factual basis and the legal basis: one party’s reliance on other parties’ trust and rights promotes the legal mirror of expert governance,and also summarizes the status of experts.The setting,on the one hand,requires that it should not infringe on the interests of the principal through the extensive discretion granted by the principal.On the other hand,it is not allowed to take the money of the principal but don’t do anything,it requires the experts to take positive actions to seek benefits for the client,even if the loss of economic benefits or the failure of the purpose can be exempted only after a cautious obligation review.The fiduciary duty is an abstract obligation that exists widely in the granting of rights and interests.It has an inclusion relationship with the obligations of the agent,the obligation of the director,and the obligation of the trustee.As for its specific identification,Professor Tamar Frankel’s interpretation framework provides a good illustration of its components.The second chapter of this paper begins to explore the legal status of the bankruptcy administrator.As a subject of multi-disciplinary discussion,the author first summarizes the relevant theories and points out the problems that may exist in various theories,including the inability to reflect the independence of the administrator discretionary power,the difficulty of defining the basis of the manager’s responsibility,etc.,led to the belief that the manager’s “fiduciary” legal status theory better explained the role of the manager in the bankruptcy process: not only advance the bankruptcy process,the rapid operation also strives to strengthen the operation of the property based on its disposition of the bankruptcy property,promote the preservation and appreciation of the debtor’s property and then distribute the interests of the creditor.This chapter defines the status of the administrator’s fiduciary by virtue of the analysis framework of Professor Frankel in the first chapter,which is scientific and reasonable.The third chapter discusses the specific content and target of the bankruptcy administrator’s fiduciary duty.For the content composition,this paper believes that it should still be limited to the dual analysis framework of duty of loyalty and duty of care,which is conducive to the stability of the fiduciary system itself.It also limits the structural disorder that may result from the joining of other obligations.As for the fairness obligation,it is rather the specific content and advocacy norms under the duty of loyalty.The duty of loyalty restricts the positive behavior of the administor to damage the public welfare,and the duty of care encourages the manager to take positive actions to promote the maximization of property interests,thereby further preventing the laziness of acting.For the object of fiduciary duties,this paper believes that it is better to establish the creditor as the only object,not only because of the discomfort of other subjects,but also because the singularity of the object is conducive to the sole purpose and certainty of the manager’s purpose,remove it from the multi-targeting object weight limit.The fourth chapter is the specific development of the content of the fiduciary duties of the third chapter of the administrator,and points out the behavioral structure of the manager’s fiduciary duty violation in a specific situation.The typical behavior of loyalty violations is the conflict of interest.Of course,the impact of expert governance on the normalization of conflicts of interest,the conflict of interest is being unlocked under certain conditions,but only needs to be disclosed and licensed to wash out its responsibilities.Attention to violations of obligations is not only manifested in the laxity of different stages.From the perspective of the entire bankruptcy process,the most fundamental duty of care is to evaluate the debtor’s property through commercial judgment.If the relevant measures are not taken to improve the debtor’s property value.To a certain extent,it will constitute a violation of the duty of care.The above obligations may result in corresponding variants in the reorganization process.In particular,the duty of care is mainly manifested in the reorganization process as the supervision of the debtor’s management.As for the legal liability that may arise from breach of fiduciary duty,this article provides a brief overview of the criteria for the identification of responsibilities and a statement of responsibility.The last chapter of this paper combines the specific model of legislation and judicial governance,and advocates the establishment of the fiduciary status of the administrator through text interpretation,the establishment of a dispute of fiduciary duty as an independent civil case,and the presentation of typical cases to achieve the theoretical development and practical progress of bankruptcy administor’s fiduciary duty under the Chinese legal system.Of course,how to explain the evolution of the manager’s fiduciary duty itself requires further confirmation and promotion of judicial practice.After all,judicial rationality focuses on the practice of rules and is more in line with the institutional facts mapped by the “law in action”.