Research On The Legal Problems About The Enforcement Procedure Transformed To The Bankruptcy Procedure

The problem of enforcement difficulty and bankruptcy initiation has a long history in China.On the one hand,due to the long-standing enforcement of the cases,the enforcement procedure cannot effectively achieve the goal of the market oriented exit of the problem enterprises,and the implementation of a large number of enforcement cases has resulted in the problem of “congestion lakes”,which has led to the decline of judicial credibility;on the other hand,subject to multiple factors,such as judicial status and cognitive concepts,enforceable cases cannot enter into the bankruptcy process,consuming lots of judicial resources,and a large number of "Zombie Enterprises" still exist in the market,resulting in the disorder of the market.As important procedures to realize creditor's rights,enforcement procedures and bankruptcy procedures have their own advantages and play important roles respectively.Although China has carried out related work,it still has problems such as difficulty in initiating,imperfect system and regional differences.How to ensure the effective transformation and convergence between the two procedures,guide the enterprise who cannot execute to enter into the bankruptcy procedure smoothly through the enforcement procedures,and realize the value pursuit of efficiency and fairness,has already led to the discussion of the theoretical and practical circles.In response to the above problems,the author focuses on the linkage mechanism between the enforcement procedures and the transformation of bankruptcy procedures,and elaborates on the following four parts:The first part is about the functional orientation of the enforcement procedures and bankruptcy procedures,the pursuit of value and the internal mechanism of the two procedures.By analyzing the functions and values of the two kinds of procedures,the rationality and necessity of the transformation of the two kinds of procedures are explored from the aspects of the economic function,judicial function and social function of the enforcement procedures and bankruptcy procedure.The second part combs and summarizes the current legislative and judicial practice status in China on the review of enforcement procedure transformed to bankruptcy,and analyzes some problems in the current work.At the legislative level,the system of translating and breaking through only has the legal basis for judicial interpretation,and faces the problem of lower legal ranks.Meanwhile,the practice of implementing opinions varies from different Higher People's Courts,which hinders the promotion of the enforcement of off-site cases.In terms of judicial practice,due to the dilemma of the implementation of the Enterprise Bankruptcy Law and enforcement dilemma,the subjective willingness of the superimposed parties to start the transformation and break the procedure is low,which makes the enforcement to the bankruptcy procedure into an idling situation.Through the summary of the status quo of legislation and judicature,it provides an analytical basis for the next part of the deconstruction problem and system improvement.On the basis of the second part,the third part focuses on the analysis of the causes of some problems in China's current implementation,from the initiating mode of the parties' censorship and the participation in the distribution system.The application of different interests between different subjects and the tilting investment of social resources led to the "big enforcement,small bankruptcy;strong enforcement,weak bankruptcy;simple enforcement,prosperous bankruptcy",the judicial structure and other dimensions deconstructed the obstacles and reasons that hinder the progress of the procedure.Through specific analysis of specific issues,in order to provide specific ideas for the successful resolution of the problem.In the fourth part,the corresponding solutions are proposed from the following three aspects: initiating procedure,transformation procedure and review and relief procedure,in order to enhance the operability of the system and open up the transition path between the enforcement procedure and the bankruptcy procedure.