Study on the System of Bankruptcy Trustee
|Course||Civil and Commercial Law|
|Keywords||bankruptcy law bankruptcy trustee interest analysis right obligation civil responsibility|
Enterprise Bankruptcy Law of PRC contributes to the development of the system of bankruptcy trustee. Though Supreme People’s Court has enacted the concrete judicial explanations of Enterprise Bankruptcy Law of PRC which have resolved some important problems, theoretical debates remain unresolved. System needs the guidance of theory, while exercise of the law needs support of theory. I discuss the issue in the following aspects:The title of the first chapter is“the historical evolution of system of bankruptcy trustee”. This study has its special meaning and value in China mainland especially. Ever, the system of bankruptcy and socialism is oil and vinegar, and there is no such thing as bankruptcy trustee in the statute sense. But from the functional and substantial perspective, I think that the system of bankruptcy trustee evolve from the informal to formal system which embodies that it acts as“government”,“liquidator”and“trustee”. During the long-time development of the system, the government retreats from the field whose task is to foster the efficient and neutral market of bankruptcy trustee. In the final analysis, market and social market is the context where we discuss the system of bankruptcy trustee. The above-mentioned point of view is so simple that it is easy to be neglected.The title of the second chapter is“the legal status and characters of bankruptcy trustee”. The definition of the legal status of bankruptcy trustee determines the selection, change, rights, obligation and reliability of bankruptcy trustee in the logic. I deem that some basic standings should be set up to evaluate the different theoretical doctrines. I choose the interest analysis as the fundamental perspective to estimate the legal status of bankruptcy trustee in the different countries and our country, and the doctrine should have the power of explanation. By the analysis of evaluating the main doctrines, I think that the legal status of bankruptcy trustee should be“individual civil subject”which should be independent, neutral, professional and fair.The title of the third chapter is“the system of the selection and reward of bankruptcy trustee”. The goal of bankruptcy law and legal status of bankruptcy trustee determine the selection of bankruptcy trustee, which is the focus of bankruptcy law. The qualification of bankruptcy trustee compatible with its legal status should include necessary knowledge, experience and good individual capability. At the same time, they can’t hold negative qualification. I agree with the regulation of Enterprise Bankruptcy Law of PRC in the aspect of selection of bankruptcy trustee, which accord with the situation of our country. The principle of selecting bankruptcy trustee is“maximization of efficiency”. So, bankruptcy trustee should be selected according to the kind of bankruptcy enterprise and scale of bankruptcy, and the selection should help to the formation of mature market of bankruptcy trustee. The two judicial explanations relevant with Enterprise Bankruptcy Law of PRC incarnate the before-mentioned principle and idea of“differentiation”. Of course, the change of bankruptcy trustee should be same. How to determine the reward of bankruptcy trustee becomes a Gordian knot. Owing to the status in quo of our country, I approve the choice of current judicial explanation of Enterprise Bankruptcy Law of PRC promulgated by supreme people’s court, which doesn’t deny the possibility of choosing other models in the future.The title of the fourth chapter is“the system of duty of bankruptcy trustee”. To complete the goal of bankruptcy trustee, law invests them with enough rights. Due to my recapitulation, these rights include the right to take over and collect materials and property, right to determine, right to administrate, right dispose, right to action, right to suggest holding creditors’meeting and other appropriate rights relevantly. Accordingly, law imposes strict obligations on bankruptcy trustee, which are duty of care, duty of being diligent, and duty of loyalty. As to the judgment standard of these duties, the standard is“reasonable professional person”and not“reasonable person” in tort law. Further, bankruptcy trustee should undertake responsibility if breach of statutory duty. As to the nature of responsibility, there are various kinds of doctrines such as contractual responsibility, tort responsibility, and professional responsibility. As for me, tort and contractual responsibility is proper, while professional responsibility does not deal with the nature of bankruptcy trustee’s responsibility. Then, I agree that the principle of ascription of bankruptcy trustee’s responsibility should be fault and not non-fault principle. Certainly, based on the particularity of bankruptcy trustee, it is very necessary to devise special legal mechanism to resolve the problem of responsibility, such as the systems of bankruptcy trustee deposit and professional insurance.The title of the fifth chapter is“the system of supervision on the bankruptcy trustee”. No efficient supervision, it is possible for the bankruptcy trustee not to act well which will damage the legitimate interests of creditor. There are different kinds of models and institutions that supervise the bankruptcy trustee. In China, people court, creditor’s meeting or commission of creditors, governing institutions in special circumstances all have the right to supervise. Though some administrative bodies have right to supervise, I don’t approve that law grants them such right, Enterprise Bankruptcy Law of PRC embodies this point of view. As to the kinds of supervision, supervisions of qualification, act, and reward on the bankruptcy trustee. Of course, any supervision should have scientific and reasonable procedure and way, and any supervision can’t disturb the normal action of bankruptcy trustee.