Research On The Two-way Connection Mechanism Between Enforcement Procedure And Bankruptcy Procedure

?Interpretation of the Supreme People's Court on the application of?the Civil Procedure Law of the people's Republic of China??(hereinafter referred to as “judicial interpretation of Civil Procedure Law”)Articles 513 to 516 generally stipulate the connection system between execution procedure and bankruptcy procedure,The Supreme People's Court issued the guiding opinions on Several Issues concerning the transfer of execution cases for bankruptcy review,Specific requirements have been made for the working principles,conditions and jurisdiction,decision-making procedures,and bankruptcy examination and acceptance of the transferred court in the execution of cases,It is a relatively comprehensive regulation on the system of transferring execution to bankruptcy at present,Local methods institutes have issued relevant specific regulations.The mechanism of transferring enforcement procedure to bankruptcy procedure makes the effective connection between execution procedure and bankruptcy procedure,To a certain extent,solve the problem of insolvency of the executed enterprise.However,In judicial practice,the procedure of transferring execution procedure to bankruptcy procedure still faces some restrictive factors,such as obstacles in starting procedure,consultation,nonstandard transfer procedure,imperfect mechanism of regulating the abuse of carrying out procedure,incomplete implementation of investigation and control measures,lack of foundation for resource sharing between enforcement and bankruptcy,There is no substantial increase in the number of cases leading to the transfer of execution procedures that should have been blowout to bankruptcy procedures,The problem of “difficult implementation” has not been effectively solved.At present,most of the researches on the mechanism of transferring execution procedure to bankruptcy procedure lie in the connection from execution procedure to bankruptcy procedure,But in order to create a virtuous cycle of holding and breaking,The full cooperation of the executive department is also needed in the trial of bankruptcy cases.This paper demonstrates the theoretical and practical basis of the two-way connection mechanism between the execution procedure and the bankruptcy procedure by using interdisciplinary analysis and theoretical and practical research methods,Building the foundation of this mechanism,defining the connotation and extension of the object discussed in this paper,Analysis of domestic judicial practice and investigation of existing legislation abroad,Put forward existing problems,Put forward existing problems,Promote cooperation between the two departments,Speed up the handling of enterprise legal person cases,The conclusion of bankruptcy cases is simplified and efficient.There are more than 40000 words in this paper,From the following three chapters,this paper discusses the two-way linkage mechanism between the execution procedure and the bankruptcy procedure.The first chapter is an overview of the mechanism from execution procedure to bankruptcy procedure.The mechanism of transferring execution procedure to bankruptcy procedure refers to that when the debtor enterprise legal person who meets the bankruptcy conditions in the execution procedure falls into “execution failure”,The mechanism of transferring the case to bankruptcy review with the consent of the entitled subject.On the application of the procedure from execution to bankruptcy,First of all,it is necessary to clarify the standards of the three elements of the mechanism before deciding whether to transfer the case to bankruptcy review,participate in the distribution system and terminate the execution procedure system according to Article 513 of the judicial interpretation of the civil procedure law,Avoid conflicts between systems,The "last mile" to solve the difficulty of execution is to clarify the mechanism of transferring execution procedure to bankruptcy procedure,Promote the process of implementation difficult to market order.The typical cases are studied and summarized,The main types of cases in which the execution procedure is transferred to the bankruptcy procedure and the judgment opinions of some courts on relevant matters are examined respectively,Reveal and analyze the problems in the process of transferring execution procedure to bankruptcy procedure.And put forward the realistic obstacles of bankruptcy procedure,which are mainly embodied in: The enforcement problem that the bankruptcy property is not enough to pay the bankruptcy expenses;Lack of foundation for resource sharing in execution and bankruptcy.The second chapter is a comparative study of the linkage mechanism between the execution procedure and the bankruptcy procedure.To sort out the current procedures for the conversion of execution procedure to bankruptcy procedure in China,Compare the practices of Britain,Switzerland,France and Germany,From which we can draw useful enlightenment.On this basis,in view of the perfection of the bankruptcy procedure transferred from the execution procedure in China,four beneficial inspirations are summarized,t includes: the starting mode with the principle of application as the main function and the principle of authority as the auxiliary;the diversification of the application subject of the bankruptcy procedure;strengthening the obligation requirements of the executive judge;paying attention to the protection of the rights of the parties and the people outside the case.The third chapter is to explore the perfect path of the two-way linkage mechanism between the execution procedure and the bankruptcy procedure.The first part is to offer some suggestions for optimizing the mechanism of transferring execution procedure to bankruptcy procedure in China,First of all,it is necessary to establish the perfect principle of transferring the execution procedure to the bankruptcy procedure,Including: the combination of enforcement and breaking,the principle of bankruptcy priority,the principle of unity of efficiency and justice,and the principle of proportion.Secondly,under the guidance of these three principles,in view of the existing problems in China,the corresponding optimization measures are proposed,Including: promoting the opening of the procedure from execution to bankruptcy;establishing a unified applicable condition;Perfect the connection mechanism of efficiency and justice;standardize the operation process of case transfer.In order to realize the good operation of the mechanism of transferring execution procedure to bankruptcy procedure,Secondly,we should improve the regulatory mechanism of abusing the execution to bankruptcy and the guarantee and supporting mechanism of the operation of the execution to bankruptcy procedure.The second part aims to explore the application of the mechanism of execution procedure in bankruptcy procedure,Including: Execution procedures are preserved in bankruptcy proceedings;Establish and improve information sharing and management system;To create a mechanism for the docking of bankruptcy procedures with execution procedures;Formation of a mixed bankruptcy collegiate panel with the participation of an executive judge.