| The development of China’s market economy has led to the diversification of market entities,followed by the market situation of “survival of the fittest”,and the importance of bankruptcy proceedings for enterprises has gradually emerged.The bankruptcy administrator is the most important subject in bankruptcy proceedings,and their behavior determines the distribution of interests among all interested parties.However,China’s relevant regulations on the obligations and responsibilities of the bankruptcy administrator only include Article 27 and Article 130 of the Bankruptcy Law,which have strong generality and ambiguity and are not conducive to the fair distribution of enterprise bankruptcy property and the efficient completion of the proceedings.In addition,with the gradual increase in the number of lawsuits related to the assumption of responsibilities by managers,their shortcomings have also been continuously revealed.The further improvement of the obligations of the bankruptcy administrator is a breakthrough in the reform of the bankruptcy administrator system.This article attempts to clarify the fiduciary duties of the bankruptcy administrator,refine the fiduciary duties and diligent duties,and improve the mechanism for assuming responsibility for a breach of trust based on the position of the trust trustee.It is hoped that we can find a reform approach suitable for our judicial practice.This article mainly consists of the following four parts:The first part selects cases from judicial practice to form a sample for analysis,explains the analysis method in detail,and analyzes the sample data.The result shows that in the relevant cases of bankruptcy administrators in China,the number of cases prosecuted for the failure of the bankruptcy administrator to perform his duties diligently and faithfully accounts for a small proportion,and the adjudication results are biased.Through case-bycase analysis,this paper raises legal issues such as vague legal provisions on the obligations of the bankruptcy administrator and incomplete liability assumption in China’s legislation.The second part expounds on the connotation of fiduciary duty,relevant theories on the legal status of the bankruptcy administrator,and the legal nature of the bankruptcy administrator.Through analyzing and evaluating domestic and foreign theories,this article points out that positioning the legal status of our bankruptcy administrator as a bankruptcy trustee can not only solve the current shortcomings of different theories,strengthen the legal characteristics of our bankruptcy administrator,but also improve the regulation of the legal behavior of the bankruptcy administrator,promote the fair distribution of property in bankruptcy proceedings and the smooth progress of related procedures.The third part clarifies that the fiduciary obligations of the bankruptcy administrator are divided into loyal obligations and diligent obligations by drawing on the relevant experience of the fiduciary obligations of the bankruptcy administrator in the AngloAmerican legal system and the fiduciary obligations of directors in China’s company law.Through separate elaboration and discussion,the content and judgment criteria of the fiduciary obligations of the bankruptcy administrator are initially constructed,and the target of the fiduciary obligations is confirmed.The fourth part clarifies the responsibility-bearing mechanism for the breach of fiduciary obligations by the bankruptcy administrator.The core of bankruptcy proceedings is the bankruptcy property,and the civil liability borne by the bankruptcy administrator is the most important relief measure for its breach of fiduciary obligations.After elaborating on the civil liability of the bankruptcy administrator,this chapter points out the need to further improve the investigation mechanism for the criminal and administrative responsibilities of the bankruptcy administrator and proposes improvement suggestions through relevant supporting mechanisms such as responsibility relief,supervision,and allocation of the burden of proof,to comprehensively consider the construction and implementation of the bankruptcy administrator’s fiduciary obligations. |
