On The Construction Of Simple Bankruptcy Procedure In China

Simple bankruptcy procedure,also known as "small bankruptcy",is generally applicable to the case of simple case,clear relationship between creditor’s rights and debts and small amount of property.There is no provision on the simple bankruptcy procedure system in the current enterprise bankruptcy law in China.In judicial practice,some simple cases can only apply complex and complicated ordinary bankruptcy procedures,which leads to the low enthusiasm of the enterprise owners to exit the market through bankruptcy procedure,and the proportion of enterprises entering the judicial bankruptcy procedure is very low.Bankruptcy system is an important way for enterprises to solve debt disputes,optimize resource allocation and promote the healthy development of market,which is an indispensable and important system of modern judicial system.In order to maximize the effectiveness of bankruptcy system,optimize business environment and promote the complicated and simplified flow of bankruptcy proceedings is necessary.This paper,combined with the relevant legislation and judicial practice at home and abroad,makes a brief analysis of the specific rules of simple bankruptcy.Specifically,this paper is divided into six parts:The first part introduces the current difficulties of the bankruptcy of small and medium-sized enterprises in China.The advantages of small and medium-sized enterprises are flexible capital,simplified organization,less debt;and the disadvantages of small and medium-sized enterprises are also very prominent: the capital chain is not complete,it is very vulnerable to financial risks,and it is difficult to take effective measures when encountering major risks.Due to the long time and complex process of bankruptcy procedure,small and medium-sized enterprises hardly take the initiative to apply for bankruptcy procedure.Based on this,for small and medium-sized enterprises,simplifying the bankruptcy procedure is the top priority.The second part mainly discusses the necessity and feasibility of the construction of simple bankruptcy procedure in China.The necessity mainly includes: optimizing the business environment,implementing the complicated and simple separation of cases,speeding up the liquidation of enterprises and subsequent accountability;the feasibility mainly includes: the simple procedure of common cases stipulated in the civil procedure law simplifies the process of case trial,improves the efficiency of case conclusion,and provides a basis for the simple bankruptcy procedure The construction of the bankruptcy procedure has played a guiding role;the experimental exploration of the relevant domestic courts has confirmed that the simple bankruptcy procedure has a great application space.The third part mainly analyzes the domestic and foreign experience samples of the construction of simple bankruptcy procedure.The foreign practical experience mainly draws lessons from the relevant laws and regulations formulated by the United States,Germany,Japan and the United Nations,while the domestic experience takes Wenzhou court and Ruian court as samples,discusses in detail the specific legal norms formulated by each court in the procedure,and analyzes the current practice of simple bankruptcy procedure The advantages and disadvantages,the relevant improvement path is proposed.The fourth part is the author’s specific application-oriented norms on the construction of summary bankruptcy procedure based on domestic and foreign legislative practice,mainly including: the scope of application of summary bankruptcy procedure,jurisdiction and trial organization,start and transfer,bankruptcy administrator,trial period,trial mode,property distribution mode,bankruptcy fee reduction and other simplified matters.Generally speaking,the specific norms of simple bankruptcy procedure embody the unity of the principles of justice and efficiency.The fifth part mainly discusses the difficulties and analysis of the application of summary bankruptcy procedure.In judicial practice,some cases have not achieved the expected simplification effect.The main reasons are: the absence of legal provisions,the lack of linkage mechanism between government and court,the weak sense of trial limit control of the undertaker and bankruptcy administrator,and the frequent occurrence of derivative litigation.The sixth part puts forward the corresponding improvement measures for the difficulties in the application of the simple bankruptcy procedure: exploring the establishment of the bankruptcy "payment order" system,taking measures to effectively connect the bankruptcy procedure and derivative litigation,innovating the trial methods of bankruptcy cases,strengthening the supervision of the bankruptcy administrator,and improving the cooperation mechanism between the enforcement and the bankruptcy.