Research On The Connection Between Enforcement Procedure And Bankruptcy Procedure

On December 7,2016,the Supreme Court,in a speech at the national court's video conference on”Transfer of Enforcement Procedure to Bankruptcy Procedure",deployed the relevant work of transferring enforcement cases to bankruptcy courts for review.The problem of difficult starting of bankruptcy proceedings is very prominent in the current legal framework,and the bankruptcy system,an important market body's rescue and withdrawal mechanism,is far from playing its role and value effectively.The difficulty of starting bankruptcy proceedings has become a difficult problem that seriously restricts the bankruptcy of enterprises according to law and the implementation of bankruptcy laws.In this regard,based on the Guiding Opinions on Several Issues Concerning the Transfer of Execution Cases to Bankruptcy Review promulgated and implemented by the Supreme People's Court on January 20,2017,this paper makes a series of discussions on the review issues,transfer issues and bankruptcy filing issues encountered in the transfer of execution cases to bankruptcy.It has been more than a year since the promulgation of the above-mentioned regulations,the transfer of the enforcement procedure to bankruptcy proceedings has not reached the required status,and many courts are still in the exploratory stage.Therefore,the author realizes that the execution procedure and bankruptcy procedure,which were originally two completely different judicial procedures,deserve our study and discussion on how to better serve the judiciary after the combination of the two.This article will focus on describing the intrinsic value and the "judicial benefits" brought about by the connection between the two systems.This research is to sort out the relationship between the execution procedure and the bankruptcy procedure,and also to make the law enforcers understand its significance,so as to facilitate the establishment of the system and provide reference for people.This article focuses on the intrinsic value of the "enforcement to bankruptcy procedure" and the "judicial interests" brought about by the convergence of the two systems through five parts.It clarify the context and dredge the nodesof the bankruptcy proceedings in the future,as well as to recognize the great significance of "breaking through persistence" for the majority of enforcement lines,and at the same time to provide some reference for accelerating the implementation of the system.The article begins with an analysis of an execution case handled by a grass-roots people's court in Shanghai.It finds that the court and the parties encounter difficulties in executing the procedure of transferring bankruptcy when it has not yet been clearly stipulated,and puts forward the necessity of establishing the procedure of transferring bankruptcy to enforcement.Chapter two of this article mainly discusses the creation of "transferring bankruptcy to enforcement",the formation of "transferring bankruptcy to enforcement" mechanism and the perfection of the supporting system of "transferring bankruptcy to enforcement" from the perspective of legal evolution,and perspective the legal basis of "transferring bankruptcy to enforcement".Through the value analysis of "transferring bankruptcy to enforcement",this paper fully illustrates the progressive significance of the judicial practice it brings,and the substantial improvement it can expect to bring about in the future judicial practice.As a rational choice to coordinate the rights relief and conflict of multi--stakeholders in market economy,the docking of bankruptcy procedure and execution procedure will become a new solution to the dilemma of "difficultly enforce" in China,and also an inevitable choice to maintain market order,no matter from the legal basis,practical needs or legal status.Chapter ? of this paper examines the exploratory attempt made by local pilot courts in China to enforcejudgments that cannot be transferred to bankruptcy proceedings,and analyses the problems existing in the "transferring bankruptcy to enforcement" procedures,which are mainly manifested in:The starting procedure of "transferring bankruptcy to enforcement" is not perfect;the efficiency of "transferring bankruptcy to enforcement" review is not high,because the enthusiasm of executives to transfer to bankruptcy and the degree of specialization in bankruptcy cases are not high;the supporting mechanism of bankruptcy cases is not perfect;and the supervision mechanism is not perfect.Chapter IV of this paper mainly deals with the legislation on the commencement of bankruptcy proceedings in Germany,France,the United States,the representative countries of the common law system,and Taiwan,China.It reflects the value concept of multi-objective protection of modern bankruptcy legislation from different aspects,and provides useful reference and reference for the perfection of the connection of breaking procedures in our country,Chapter V of this paper puts forward some reform measures:firstly,improve the start-up procedure of "transferring bankruptcy to enforcement".Secondly,we should simplify the bankruptcy procedure to improve the efficiency of the examination of "transferring bankruptcy to enforcement".At the same time,we should set up a special team of persistent breakers within the court and strengthen the interpretative function of judges.Thirdly,we should establish corresponding supporting measures to promote the smooth progress of the work of procedure of transferring bankruptcy to enforcement to bankruptcy procedure.We should establish a special fund system.Finally,the supervision and restriction mechanism should be improved to protect the rights and interests of the concerned parties.Through the way of reform,we can smooth the channel of "transferring bankruptcy to enforcement" and make it serve judicial practice more comprehensively.