Study On Judicial Application Rules Of Bankruptcy Trustee's Duty Of Care

In recent years,the government has encouraged enterprises to use official bankruptcy procedures and vigorously reduced the number of ineffective "zombie enterprises" in the economy.With the increasing number of bankruptcy cases,we need a perfect bankruptcy system to protect the interests of all parties.The bankruptcy law of the People's Republic of China in 2007 introduced the bankruptcy trustee system,whose job is to provide optimal solutions for insolvency activities to balance the interests of all parties.Through the statistics of cases involving "bankruptcy trustee's liability dispute" between 2012 and May 2019,found that bankruptcy trustee's fiduciary duties often become the focus of controversy in the judicial referee,But the verdict was mostly in favor of the bankruptcy trustee.Creditors often find it difficult to safeguard their legitimate rights and interests through article 27 or 130 of the enterprise bankruptcy law.On the one hand,article 27 of the enterprise bankruptcy law is only a principle provision on the fiduciary duty of the bankruptcy trustee,and there is no uniform applicable standard in judicial practice.On the other hand,since the trustee has professional knowledge and is at the center of the bankruptcy activities,he or she has a better understanding of the bankruptcy property and bankruptcy procedures than the creditor.The traditional rules of proof make the creditor bear a heavier burden of proof,which makes it difficult to prove that the trustee fails to fulfill the duty of care.The purpose of the introduction of the bankruptcy trustee system in China is to better balance the interests of all parties in bankruptcy activities.In order to reduce moral hazard and avoid the abuse of power by the administrator,the law must clearly stipulate the fiduciary duty of the trustee.Fiduciary duty usually includes two aspects: duty of care and duty of loyalty.Since duty of loyalty is relatively objective,this dissertation focuses on studying the rules of judicial application of duty of care of bankruptcy trustees,which is divided into four chapters:The first part carries on the summary to the duty of care,clarifies what is the duty of care and introduces the legislative status of bankruptcy trustee's duty of care in China.Then discuses the source of the bankruptcy trustee's duty of care.The second part mainly describes the status quo of the judicial application of the bankruptcy trustee's duty of care in China.First of all,the dissertation analyzes the practice status of the judicial application of the duty of care of the bankruptcy trustee in China,and analyzes some cases.Secondly,based on the foregoing analysis,the dissertation discusses the problems existing in the rules for the judicial use of the duty of care of bankruptcy trustees in China.Finally,the dissertation analyzes the consequences of fuzzy application of duty of care standards.The third part mainly studies the rules of judicial application of the duty of care of the extraterritorial bankruptcy administrator.The duty of care of bankruptcy trustees in USA,UK,Germany and Japan is introduced respectively.Then through the investigation of foreign experience,and then looking back at our country,we should choose the experience suitable for our national conditions for reference.The fourth part mainly describes the reconstruction of the judicial application rules of the bankruptcy trustee's duty of care in China.Through the discussion of the first three chapters,this chapter discusses the judicial application rules of the bankruptcy trustee's duty of care in China.Including the content of manager's duty of care,the object to which the duty of care points,criterion of duty of care,distinguish the duty of care of trustees in different bankruptcy proceedings and providing institutional suggestions for establishing the rules governing the judicial application of the bankruptcy trustee's duty of care.