How To Operate Bankruptcy Proceedings Smoothly

China's current bankruptcy law is formulated in the era of planned economy, which has a distinct ownership system. The market order of XX city and the improvement of the economic system have played a great role in promoting the establishment of the XX market economy system. Its limitations and defects have become increasingly apparent. The legal provisions are simple and crude, and can not adapt to the current complicated and new situations, especially in the aspect of procedural operation. It is urgent to complement and perfect. In view of the immense bankruptcy theory, the complexity of China's bankruptcy practice and the ability of the author, this paper intends to make some superficial discussions on the conflict and coordination between the bankruptcy proceedings and the common civil cases involving debtors, and the settlement procedures of disputes between the liquidation group and the third party, etc., in the light of the bankruptcy theory, the XX's bankruptcy practice and the author's ability.

Conflict and coordination between bankruptcy proceedings and ordinary civil cases involving debtors

Bankruptcy proceedings in a broad sense refer to a special procedure for debtors who can not pay off their debts due to their creditors' fair compensation. Since it is always in the process of trial and depends on the enforcement of state coercive power, it is a judicial procedure in this sense. Its purpose is to safeguard the realization of civil rights of the parties concerned, which is not only related to other civil procedures but also different from those of other civil procedures, and should belong to the special procedures in civil procedure. Therefore, the bankruptcy procedure has unique value different from other civil actions and enforcement procedures, mainly because it can create some unique entity systems and procedural rules in the process of operation, so as to appropriately change the existing entity rights and obligations before the bankruptcy proceedings begin. At the same time, because bankruptcy is a complete liquidation of all legal relations of debtors, as the ultimate means of civil rights relief, conflicts of interest and value conflicts in bankruptcy proceedings are far more intense and complex than ordinary litigation procedures. The contradictions triggered by social changes are more fully reflected and more widely influenced by society. Therefore, it is particularly necessary to explore conflicts and coordination between bankruptcy proceedings and ordinary civil procedure.

The interest relationship regulated by the bankruptcy law is intricate. It involves both internal debt (such as labor relations, investment relations) and external (such as creditor's rights and debt relations), covering private law and public law, such as taxation and customs supervision, all of which involve litigation related to bankruptcy cases. After the bankruptcy case is accepted, whether the other civil proceedings that are being applied for bankruptcy should be debtors or creditors should be continued after the bankruptcy proceedings have been started? After the bankruptcy proceedings are launched, the bankruptcy creditors shall object to the bankruptcy claims, and the creditors shall have the right to claim, the right of set off and the right of recall. How to deal with litigation and jurisdiction of the right to revoke and damage compensation to management personnel?

According to the provisions of the current bankruptcy law, after the bankruptcy case has been accepted, the other parties to the bankruptcy proceedings should be terminated in other civil proceedings (except for other joint and several liability persons in the case). The people's court that has been applied for bankruptcy is transferred to the people's court for accepting bankruptcy cases (except those who have entered the court of second instance). Disputes arising after the bankruptcy proceedings start are usually solved in the bankruptcy proceedings. The author believes that in the first case, the debtor's proceedings should be suspended. After the bankruptcy administrator (liquidation team) has been subjected to the management and disposition rights of the bankrupt property, the decision is whether to recognize the other party's litigation claim or to continue the litigation. Because the bankruptcy procedure is settled when the civil rights and obligations have been determined, how to make the liquidation of the debtor's limited property to the majority of creditors, and the disputes of substantive rights and obligations of the parties must be settled through litigation procedures before they can be liquidated through bankruptcy proceedings. In the second case, it is required to deal with substantive legal disputes in the form of a ruling. In fact, the disputes relating to civil substantive rights are incorporated into the bankruptcy proceedings, which not only deprives the litigants of the right to appeal, but also fails to guarantee litigation rights such as debate, cross examination, application and avoidance. In short, the jurisdiction in bankruptcy proceedings includes procedural problems and disputes related to bankruptcy property. The provisions on the content and mode of judicial exercise are not only simple but also lack of operability. Some provisions emphasize too much on efficiency and ignore justice. The new bankruptcy law has adjusted the above problems, clearly emphasized the non litigation nature of the bankruptcy proceedings, and incorporated all substantive disputes into the ordinary proceedings. This is substantially different from the current bankruptcy law, stripping the judicial power from the bankruptcy proceedings to the bankruptcy proceedings, limiting the matters of court judgment to procedural matters, that is, the civil proceedings involving the property and property rights of the debtor after the people's court accepted the bankruptcy case, which should have been terminated, and should be suspended after the administrator takes over the property of the debtor. Debtors, creditors or other interested parties may lodge a dispute with the people's court that accepts the bankruptcy case if there is dispute over the debtor's property or debts. In this regard, I think it should be added that the above disputes should be heard by the original collegial panel of the court of appeal, so that the boundary between the bankruptcy procedure and the ordinary procedure is clear, the contradiction between the existing bankruptcy law is avoided, and the limited trial resources are saved.

Starting from the practice of participating in the trial of enterprise bankruptcy cases, the author makes the following two suggestions:

The first is to reconstruct a reasonable creditor's rights review procedure. In order to ensure the smooth implementation of bankruptcy cases, we should amend the provisions of the existing bankruptcy legislation concerning the confirmation of claims. Looking at the relevant provisions of bankruptcy legislation in the world, although there are differences in some specific issues due to different national conditions and historical changes, the basic principles are the same. First, the right to claim is examined. Most countries specify the time limit for the investigation of creditor's rights for the court or the bankruptcy administrator (i.e. the liquidation team of our country), and preside over the creditor's and bankruptcy administrator's participation in the investigation of creditor's rights. Second, confirming the right of creditor's rights, all countries shall stipulate it as a court. The way of confirming creditor's rights is to confirm litigation through creditor's rights. The procedure is approximately the same as that of a flexible suit (except for jurisdiction), but it can be settled by the court in some cases that do not involve substantive rights. Third the claim confirmation procedure, which is usually still subject to objection after investigation, is determined by the court whether the claim is established and the ruling has no substantive effect. When the court decides that the objection is not established, the creditor's right is included in the claim form, and the dissenter can make a claim with the creditor for the defendant to confirm the lawsuit. When the court ruled that the objection was established, the creditor's right was not included in the claim form, and the creditor could raise the claim with the defendant as the objection to confirm the lawsuit. If a bankrupt disagrees with a claim, if it is a person who has been involved in a lawsuit and has been terminated due to bankruptcy proceedings, the bankruptcy administrator shall continue to proceed with the proceedings, which shall be under the jurisdiction of the original court of acceptance, while the newly mentioned shall be governed by the court that accepts the bankruptcy case and shall be carried out in accordance with the ordinary civil procedure. In the case of bankruptcy distribution, whether the claims are not included in the claim form shall be allocated temporarily according to the amount of disputes, and the distribution amount shall be kept, and after the determination of the creditor's rights is determined, the case shall be dealt with according to the circumstances.

Two, all kinds of disputes that are complicated in the bankruptcy proceedings should be heard in public. According to the current bankruptcy law and relevant judicial interpretations, the debtors who are applied for bankruptcy are the plaintiff's disputes. As long as the rights and obligations of the parties have the content of payment, they are embodied in the bankruptcy proceedings as creditor's rights and debt relations. Although the nature of the civil legal relationship tends to be simplistic, the case is not simplified, and the process of proof, dialectics and authentication of the evidence will not be simplified. For this reason, I believe that the public debate on the debates of the collegial panel is difficult and the open trial will help the people's court find out the case and ensure the accuracy and fairness of the referee. At the same time, the open court is also a rational requirement for the improvement of social civilization and democracy, which is conducive to enhancing the transparency of bankruptcy trial and enhancing the credibility of the referee in bankruptcy cases.

Two. Settlement and procedure of disputes between the liquidation team and the third party when performing liquidation matters

When the enterprise is declared bankrupt by the people's court, all countries' bankruptcy legislation stipulates that an organization responsible for liquidation shall be established, and the property of the bankrupt enterprise shall be kept, cleaned up, evaluated, processed and distributed in a timely manner, so as to fully protect the interests of the relevant civil subjects. The Anglo American law system is called "bankruptcy trustee", and the civil law system is called "bankruptcy administrator". Our bankruptcy law is called liquidation group. It is neither the agent of the debtor, nor does it engage in civil activities in its own name, nor is it the agent of the creditors. The legislator gives it the responsibility to perform the duties prescribed by law in an upright and detached manner. The liquidation team in our trial practice embodies the thinking mode that relies on administrative power formed under the planned economy system. In the whole bankruptcy procedure, due to the imperfect economic system at present, the economic management mode left by the planned economy period also has a certain impact and function in the process of enterprise bankruptcy. There is an objective contradiction between the administrative factors and the independence of the judicial power, resulting in the "bankruptcy leading group" with certain administrative functions, which plays a considerable command and decision-making power for the specific handling of the bankruptcy case. In order to facilitate the work, most of the bankruptcy liquidation team members of the enterprises are partly from the bankruptcy leading group. In their work, the relationship between command and obedience is unavoidable, so that the guidance and supervision of insolvency proceedings are ineffective. While performing liquidation, the liquidation group, in addition to the creditor's rights and debt relations and debates with the debtors, has disputes with the third parties. It mainly displays the following two aspects: first, the civil legal relationship, including the liquidation group's legal relationship between the infringement and the relative person in the liquidation process, because of the formation of the creditor's right and debt relationship between the behavior of the lease, the contract, the real estate development and other relative reasons. In conclusion, the civil disputes caused by illegal activities and infringing acts in the liquidation group are handled by the people's court accepting the bankruptcy cases according to the Supreme Court's request for instructions on the litigation jurisdiction of the enterprise bankruptcy liquidation team for civil disputes, such as violation or tort, and so on in the bankruptcy proceedings. In addition, according to the 101st provision of the Supreme Court on certain issues concerning the trial of enterprise bankruptcy cases, bankrupt enterprises have the acts listed in article thirty-fifth of the enterprise bankruptcy law, causing the enterprise property to be unable to recover, resulting in actual losses. The liquidation team may bring civil proceedings against the original legal representative and directly responsible personnel of the bankrupt enterprise, and demand that it bear civil liability for compensation. In addition to civil disputes with third people, the liquidation team also enjoys certain administrative right in the liquidation process (from the date of bankruptcy declaration). In bankruptcy proceedings, bankruptcy declaring or even bankruptcy proceedings, administrative actions are directly or indirectly infiltrated, and the relationship between civil bankruptcy legal relationship and bankruptcy administrative legal relationship is a major feature of China's bankruptcy procedure. Strengthening the study of administrative behavior in bankruptcy proceedings, reasonably configuring the administrative litigious rights of creditors, debtors and bankruptcy administrators is an effective way to safeguard the legitimate rights and interests of participants in bankruptcy proceedings, control and supervise administrative power in bankruptcy proceedings, and also has important practical significance for improving China's bankruptcy system and administrative litigation system. {page_break}

To sum up, the administrative actions in the bankruptcy proceedings include the following points: (1) the approval actions of the relevant government departments to the debtor's bankruptcy application; (two) the relevant government departments' decision on the reorganization of bankrupt enterprises owned by the whole people; (three) the administrative collection, punishment and administrative coercive measures imposed by the competent authorities in the bankrupt critical period, as well as the handling of bankrupt's management rights and property rights; (four) the supervision and audit management actions of the government's supervisory departments and audit institutions; (five) there are objections to administrative inaction or the right to property rights, and (six) bankruptcy relief management behavior after bankruptcy declaration. In the first five categories, the bankruptcy liquidation group can serve as the plaintiff of bankruptcy administrative legal relationship. In the sixth category, the right to appeal for bankruptcy relief management is advocated by the relevant rights holders, and the liquidation group has the third person status. According to the legislative intent approved by the Supreme Court, the administrative litigation cases mentioned above shall also be accepted by the people's court accepting the bankruptcy cases.

The above is just my humble opinion. In fact, bankruptcy trial has been emphasized by the judicial circles in our country for the three strengthening of the "litigation mode", namely, strengthening the burden of proof of the parties, the functions of the court and the duties of the collegial panel and the main body. Although it is still marginalized, we have reason to believe that as long as we deeply understand the concept of justice in the system design and standardize the text, and create a trial action with the concept of justice, we will be able to see the situation in a complex interest conflict, seize the initiative, ensure the legitimacy of the trial result and establish the judicial authority.