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Experts Suggest Modifying The Bankruptcy Law And Improving The System Of System

2011/11/7 11:24:00 13

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Experts and scholars suggested in the fourth China Bankruptcy Law Forum

Laying a smooth and orderly exit channel for enterprises

Smooth and orderly exit channel is the inevitable choice of market mechanism.

In order to standardize enterprises effectively

"Death

"Also for some enterprises to better" bring the dead back to life ", in August 27, 2006, the People's Republic of China enterprise bankruptcy law was adopted at the twenty-third session of the ten National People's Congress Standing Committee, and has been implemented since June 1, 2007.

As the main research and communication of China's domestic bankruptcy law

platform

The fourth China bankruptcy law forum was held in Beijing in from November 5th to 6th.

"In this forum, participants gathered around the bankruptcy trustee system operation issues, merger and bankruptcy reorganization and other practical problems.

bankruptcy

The protection of the rights and interests of employees and the acceptance of bankruptcy cases in accordance with law have been thoroughly discussed, highlighting the prosperity of the theory and practice of bankruptcy law.

Professor Wang Xinxin, director of the China bankruptcy law forum and professor of bankruptcy law research center of Renmin University of China, said.

Random designation of managers raises much controversy

As a highlight of the new enterprise bankruptcy law, the bankruptcy administrator system is an advanced and mature system introduced from abroad. It is also a major reform and innovation to the marketization and internationalization of China's bankruptcy law. It is also the focus of every year's China bankruptcy law forum.

In the afternoon of November 5th, Zhao Ke, the judge of the two court of the Supreme People's court, once again focused his attention on the bankruptcy administrator system, and made an in-depth exposition from the perspective of how to improve the bankruptcy management system of the people's court.

According to the introduction, in the implementation of the new enterprise bankruptcy law 3rd anniversary, the supreme law was composed of second groups of civil trial and executive board to form a research group.

"According to the data obtained from the survey, since the introduction of the management name list, the cases designated by the people's court as intermediary have accounted for 20% to 30% of all bankruptcy cases.

It can be said that we can still clearly see the figure of the liquidation group in the bankruptcy case.

Zhao Ke pointed out that the reason for this is that in the current environment, the social intermediary agencies act as managers, and it is difficult for the relevant departments to coordinate the handling of social stability, resettlement of employees and the disposal of assets such as land and houses. In practice, there are even situations where intermediaries think they are not competent enough to take the initiative to resign from their managers.

In addition, in practice, the independent status of managers is insufficient, and the problem of unclear responsibilities of managers in performing their duties and the jurisdiction of people's courts is also prominent.

"The absence of rules makes it easy for the court to get involved in complicated affairs, and too much involvement in bankruptcy matters, once the situation of accountability is required, it will also embarrass the court."

Zhao Ke thinks.

On the other hand, the way of randomly designate managers is also controversial.

Zhao Ke said that in accordance with the provisions of the Supreme People's Court on the designation of managers in bankruptcy cases, managers should be appointed by waiting, drawing lots and Yaohao.

However, due to the uneven management, random managers are also unpredictable. Sometimes the managers who lack the necessary work ability will affect the efficiency of the court.

Therefore, some courts will adopt the way of direct designation to managers.

However, even if the relevant procedures are fulfilled, it is inevitable for stakeholders to think that the work of the court is suspected of black box operation.

Therefore, Zhao Ke suggested that in perfecting the system of bankruptcy administrator, we should first perfect the designated mechanism of managers, appoint managers in different ways according to the types of bankruptcy cases, improve the management, training and incentive mechanism for the management team, further clarify the relationship and responsibilities between the people's courts and managers, and actively explore the establishment of bankruptcy cost assistance guarantee mechanism.

The number of courts accepting bankruptcy cases declined.

"In recent years, the number of bankruptcy cases accepted by the national courts has not risen or fallen. The number of cases accepted in 2006 was 4253, 3819 in 2007, 3139 in 2008, 3128 in 2009, and 2366 in 2010.

This group of figures reflects that the acceptance of bankruptcy cases in China is not satisfactory.

The figures given by Wang Xinxin effectively hit every participant's heart.

In order to solve this problem, the Supreme People's court has formulated the first judicial interpretation of enterprise bankruptcy law.

At this forum, Wang Xinxin made a detailed interpretation of this judicial interpretation.

He said that the judicial interpretation mainly clarified what circumstances the people's court should have identified as "bankruptcy reason", "debtor's failure to repay debts due to maturity", "debtor's assets not enough to repay all debts" and "apparent lack of solvency", thus alleviated the difficulties in identifying bankruptcy causes and promoted the effective operation of bankruptcy procedures; meanwhile, the judicial interpretation also stipulates that if the bankruptcy application is not accepted by the court, it can apply to the next higher court.

Yin Zhengyou, executive director of the China bankruptcy law forum and senior partner of Beijing Wei Heng law firm, pointed out that the establishment of the bankruptcy reorganization system has effectively solved the problem of reorganization and regeneration of many dilemmas, and has played a good supporting role in coping with the international financial crisis and enhancing the investment confidence of the commercial main body.

He believed that we should have a correct understanding of the reorganization system, change the negative attitude of some people to bankruptcy, correct the misunderstanding of the concept, and actively play the dual role of the efficient liquidation and active rescue of the bankruptcy law, so as to safeguard the healthy development of our economy and society.

Construction of protection fund for settling bankrupt employees

"The problem of employee resettlement and rights protection after bankruptcy is not only a legal issue, but also a social problem, which is related to social harmony and stability."

Kang Yang, deputy general manager of Beijing enterprise Clearing Company Limited, said: "for the protection of the rights and interests of employees in bankrupt enterprises, there is a unified understanding among all sectors of society, that is, we must protect workers' rights and interests best."

Let Kang also feel pleased that the attitude of employees to enterprise bankruptcy has changed significantly.

"Now, workers have more rational understanding of enterprise bankruptcy, and their bearing capacity is stronger. The most important thing is that workers' awareness of bankruptcy has been greatly improved.

In this regard, the publicity and implementation of the new enterprise bankruptcy law undoubtedly played a positive role.

Kang Yang said.

Speaking of how to better protect the rights and interests of workers in bankrupt enterprises, Yin Zhengyou believes that we should improve the mechanism and solve the problem of re employment of employees in the implementation of the enterprise bankruptcy law. First, we should set up an effective resettlement institution for employees and make clear the responsibility body and the specific responsible organization of the resettlement of bankrupt enterprises.

Secondly, we should improve the social security system for workers and staff members.

The social security system for employees in bankrupt enterprises should include four aspects: unemployment relief, endowment insurance, medical relief and minimum living security.

Third, establish a government financial assistance mechanism, which is funded by the government to resettlement workers to ensure the most basic rights and interests of workers.

Fourth, establish a staff protection fund.

It is possible to pay a certain percentage of expenses to the fund regularly through normal operating enterprises according to the business income or the number of employees.

Fifth, we should unify the standard of resettlement of employees and no longer distinguish between state-owned enterprises and non-state-owned enterprises, so that all bankrupt employees can be treated equally.

Actively promoting routinalization of bankruptcy cases

"At the present stage, there are still many irregularities, low efficiency and disorder in bankruptcy cases.

The concrete performance is that case acceptance can not be carried out according to law; the progress of the procedure can not be expected; some judges are slack in their work and do not regard bankruptcy cases as normal business.

Li Baogui, President of the four tribunal of the people's court in Chaoyang District, Beijing, pointed out that it is precisely because of the existence of these very regular situations that the trial of bankruptcy cases needs more routinalization.

What is the definition of bankruptcy cases? The definition given by Li Baogui is that routine trial of bankruptcy cases refers to putting forward scientific and reasonable standards, unifying the trial ideas, eliminating the delay and non-standard procedures and gradually achieving a fair, orderly and efficient case trial mode when the law does not specify the strict time limit for trial.

The core of the case is to put bankruptcy cases in line with conventional cases for trial and standardized management.

Li Baogui introduced the experience of routine trial of bankruptcy cases of the Chaoyang District people's court.

First of all, we should change the way of filing a case review, strictly control and limit the filing of cases, change the law to file a case according to law, and make clear the standard of filing a case; secondly, we should actively explore and sum up experience, unify the operation norm, and try to unify the way of thinking to solve the difficult problems in bankruptcy cases to the maximum extent, so as to facilitate the operation of judges. We also need to establish a process management system for bankruptcy cases, break down the bankruptcy cases into one link, define the trial period of each link according to the characteristics of each link, and give full play to the positive role of the meeting of managers and creditors.