| Articles 513 to 516 of the interpretation of the Supreme People’s Court on the application of the Civil Procedure Law of the People’s Republic of China in 2015 established the review system of execution transfer Bankruptcy(hereinafter referred to as "execution transfer bankruptcy" system).Based on the study of the difficulties in the system operation of the "execution to breaking" procedure,this paper demonstrates the necessity and legitimacy of introducing the "execution to breaking" procedure in accordance with the authority,and seeks to build a "execution to breaking" system in accordance with the authority to adapt to the current situation of our society.The first part analyzes the practical problems existing in the "execution to breaking" procedure.After several years of implementation,the system of "execution to breaking" began to fall into a weak period,which showed that the starting efficiency of the procedure was insufficient and the ability to resolve the problems of the implementation of accumulated cases was insufficient;Judicial practice also shows that there are some problems in the "execution to breaking" procedure,such as inadequate consultation of opinions,low willingness of the person subjected to execution to start,and low willingness of the parties under a specific execution case to start.The main reason is that the "implementation to breaking" adheres to the single application starting mode.The drawback of starting "execution to bankruptcy" according to the application lies in that the parties’ intention to start is biased by the traditional bankruptcy thought;The judge’s enthusiasm for handling cases is limited;The benefits of "execution to breaking" are often inconsistent with the personal interests of the parties.The second part demonstrates the legitimacy and rationality of introducing the procedure of starting "execution to breaking" ex officio.First,authority doctrine has a long history,and after a decline,it has derived a "new authority doctrine" that meets the needs of modern justice.Today,the legislative practice of various countries and regions has proved that authority doctrine still has a certain application space and necessity in bankruptcy law.Second,China also urgently needs to start the "execution to breaking" procedure in accordance with its authority to solve the negative social problems such as market credit crisis,industrial economic downturn and systemic financial risks caused by untimely market exit and too many "zombie enterprises".Third,the bankruptcy law is a cross field of commercial law and economic law,and the introduction of the ex officio "execution to breaking" procedure is also in line with the concept of paying attention to the qualification examination of business subjects in commercial law and the concept of realizing the optimal balance between personal interests and overall interests in economic law.Fourth,from the perspective of cost-benefit analysis of law and economics,the introduction of authority doctrine can exchange the long-term interests of all parties and positive market "externality" influence by paying more "implementation to breaking" system operation costs,and the total social benefits can be further improved.The third part analyzes the practical obstacles of introducing authority doctrine into the "execution to breaking" procedure.First of all,starting the "execution to breaking" procedure ex officio is essentially a manifestation of appropriate intervention by public power,and public power intervention itself has always had problems such as vague intervention standards,difficulty in accurate implementation of intervention,lack of error correction mechanism and so on.Secondly,after the direct introduction of authority doctrine,the existing "execution to breaking" system still faces the risks of improper intervention of local governments,imbalance of litigant rights,imperfect supervision mechanism and so on,which shows that starting the "execution to breaking" procedure according to authority is inseparable from a more reasonable and scientific system construction.The fourth part constructs the procedure of starting "execution to breaking" according to authority.First,in terms of starting conditions,starting the "execution to bankruptcy" procedure ex officio should ensure the exhaustive investigation of the property and debt of the person subjected to execution on the basis of Article 2 of the bankruptcy law,and take the parties’ disagreement on the application for commencement as the pre condition;Second,we should establish the principle of reasonable application of authority doctrine,apply the focus of authority start-up to the target enterprises that have a negative impact on the social economy,and prudently apply it to the specific industries with a small proportion of capital;Third,in terms of regional jurisdiction,the priority should be to find out the assets and debts of the person subjected to execution,and the principle should be to determine the jurisdiction of the place of residence of the person subjected to execution.At the same time,in order to achieve the balance between the efficiency and quality of handling cases,the jurisdiction principle of giving priority to the grass-roots court and supplemented by the intermediate court should be established in the level jurisdiction,so as to realize the diversion of easy and difficult cases;Fourth,in terms of the supervision mechanism,the supervision of the decision to transfer the "execution to breaking" should be included in the scope of responsibility of the judicial committee.At the same time,a hearing should be established to improve the internal and external supervision mechanism.In terms of relief mechanism,the parties are allowed to apply for reconsideration to the higher people’s court if they fail to disagree with the transfer decision,and require the court to reasonably review the parties’ procedural options for bankruptcy liquidation,bankruptcy reorganization and bankruptcy reconciliation.Fifthly,supplemented by the strengthening of the linkage mechanism between the government and the court and the construction of the joint review organization,we should further improve the rationality of launching the "implementation to breaking" procedure according to its authority. |
