Determination And Remedy Of Defects In The Effectiveness Of Creditors’ Meeting Resolutions

As a basic form of creditors’ autonomy in bankruptcy proceedings,creditors’ meeting is an important deliberative institution for all creditors to participate in bankruptcy proceedings and safeguard their own interests.For the creditors’ meeting to perform its duties,it is necessary for the meeting to convene,make resolutions and form effective resolutions.If the resolution of the creditors’ meeting is illegal in procedure and content,it will lead to the defect of its validity.However,how to identify and remedy this kind of flaw has its particularity in the bankruptcy procedure,which needs to be deeply studied.OUR COUNTRY’S "enterprise bankruptcy law" does not have much to say about the cognizance and relief of the flaw of the creditors’ meeting resolution,and the theoretical circle has little to discuss the problem deeply,it should be improved to achieve the unity of theory and practice.At present,the main problems existing in the determination of the validity flaws of the resolutions of the creditors’ meeting in our country are that the nature of the resolutions of the creditors’ meeting itself is not clear,and there are legislative loopholes in the determination of its validity,there are also some problems in the practice,such as the rigidity of the referee’s route and the singleness of the referee’s mode.The resolution of the creditors’ meeting shall be an act of group law under the category of Juristic Act.However,as the study of the validity of juristic act in the theory of civil law is mainly based on the individual law standard such as contract,etc.,in the study of the validity of the resolution of the creditors’ meeting,there is a problem of theoretical reference.In this regard,we should make clear the attribute of the Group Law of the resolution of the creditors’ meeting,pay attention to the basic nature of its legal act,and take the autonomy of will as the ethical basis,at the same time,it is confirmed that the public attribute of procedural rules is the main characteristic that distinguishes it from the General Legal Act.Based on the autonomy of the resolution of the creditors’ meeting,this paper discusses the three-dimensional aspect of the validity flaw of the resolution of the creditors’ meeting,and analyzes its logical structure and normative intention by the evaluation system of the private law.There is a hierarchical structure in the determination of the defects in the effectiveness of creditors’ meeting resolutions,and the research should be conducted in a three-hierarchical structure.That is,in the idea of autonomy of private law,similar to the principle of "presumption of innocence" in Criminal Law,legal acts should follow the principle of "effective presumption",that is,established legal acts should be directly presumed to be effective.Then we discuss the defect structure of the resolution of the creditors’ meeting from the opposite side,and finally form the rule of invalidation,revocation and invalidation of the resolution of the creditors’ meeting.Because of the pursuit of efficiency value in bankruptcy procedure,the resolution of the meeting of defective creditors should introduce the theory of moderating the effect of legal act in order to make up the effect.The concrete ways of mitigation are: clarifying the subtle influence of voting right flaw on resolution flaw,correcting and transforming the flaw part of the resolution of creditors’ meeting,and attributing the illegal resolution to the effect to be determined;At the same time,the court shall make a prior correction of "the ruling shall be deemed to have reached the resolution",a subsequent correction of "the order shall be made to make a new resolution",and finally expand the insolvency representative and the creditors’ committee to be the subject of relief,in order to complete the relief system of creditors’ rights and public order,we should perfect the relief system of dissenting creditors’ reconsideration.