On The Conflict And Coordination Between The Duties Of The Bankruptcy Administrator And The Authority Of The Creditors’meeting

In order to limit the autonomy of the parties and protect the legitimate rights and interests of the parties to the bankruptcy proceedings,China’s Enterprise Bankruptcy Law specifies the rights of the administrator in Chapter III of the bankruptcy administrator system by way of receiving,managing and disposing of the debtor’s property,deciding on the debtor’s internal affairs and examining the duties of the claims;in addition,in Chapter VII of the creditors’ meeting system,the rights of the creditors’ meeting are listed by way of verifying claims,supervisors,deciding on the renewal of winding-up matters,adopting the settlement or reorganization plan,and adopting the plan of distribution of liquidated assets,the rights of the creditors’ meeting are enumerated in Chapter 7.Through the arrangement of these two systems,a balance between the interests of the parties is achieved.However,in bankruptcy law practice,the original intention of the system design is not consistent with the effect of its operation in practice,and the game of interests and conflict of rights between the administrator and the meeting of creditors have become the reason for the slow advancement of bankruptcy procedures and the court becoming the morgue of "zombie enterprises".The conflict of rights between the bankruptcy administrator and the creditors’ meeting is mainly manifested as follows: firstly,there is a conflict between the administrator’s right to examine claims and the creditors’ meeting’s right to verify,which is manifested by the inconsistency of their opinions,the unclear identification of the legal concept of examination and verification,and the formalization of the creditors’ meeting’s verification authority;secondly,there is a conflict between the administrator’s right to manage,realize and distribute the bankruptcy property and the creditors’ meeting’s right to vote on and adopt the plan.Thirdly,there is a conflict between the administrator’s right to decide on the continuation or suspension of the debtor’s contract and the creditor’s meeting’s right to decide on major bankruptcy matters,resulting in a long delay in the bankruptcy proceedings.The court appointed the administrator to form the right of administration with the purpose of confirming the neutral status of the administrator’s right of administration.The source and content of the right of administration belong to both the debtor and the creditors.In other words,the administrator is the agent of both the debtor and the creditor.However,because the "agency theory" deviates from the basic theory of agency,it is rejected.The "representative of the bankruptcy consortium" can summarize the identity of the administrator and accurately express the nature of the right of administration.Based on this consideration,the countermeasures to resolve the conflict between the administrator and the meeting of creditors are: firstly,to clarify from the concept that the insolvency administrator has no private interests except the right to obtain remuneration in the insolvency proceedings,and that its administrative power is exercised for maximizing the interests of creditors,and to establish an atmosphere of respect and recognition for the administrative power.Secondly,the scope and boundary of the rights of examination and verification,organization of drafting and decision,etc.are clarified to avoid conflicts between them.In the case of temporary absence of the creditors’ meeting,it is necessary to give the right to decide on the performance of dual service contracts to the administrator.Third,to strengthen the supervision of the creditors’ meeting on the bankruptcy administrator and refine the supervision measures of self-dealing and related transactions that seriously harm the interests of creditors.Fourth,improve the qualification access and assessment mechanism for bankruptcy administrators,and enhance the professionalism of administrators.Fifth,improve the legal liability system of bankruptcy administrators,including civil liability,administrative liability and criminal liability.