Time:11-08 09: 01Author: Wang Xinxin News Source: China Civil and Commercial Law Network.
Abstract: A professional and market-oriented administrator system has been established in the draft of the new bankruptcy law. The administrator will be mainly selected by the court or creditors' meeting from social intermediary institutions such as law firms, accounting firms, bankruptcy liquidation firms and personnel with relevant professional knowledge and qualifications. Managers who undertake legal responsibilities should be diligent and conscientious, faithfully perform their duties, pay close attention to managers, and have the right to receive remuneration and bear corresponding legal responsibilities.
Keywords: professional qualifications, duties and responsibilities of the liquidation group manager
On June 26th, 2004, the 10th meeting of the 10th the NPC Standing Committee deliberated the draft of the new bankruptcy law for the first time. 1986 "Enterprise Bankruptcy Law (for Trial Implementation)" (hereinafter referred to as "Bankruptcy Law") was enacted. Due to the influence of the national reform background and planned economic system at that time, there were many problems, which made the bankruptcy law assume some improper social functions and hindered its essential adjustment function of fairly solving debt relations when debtors lost their solvency. In order to meet the needs of market economic system construction and legal system improvement, and promote China's integration into the world economic and trade system as soon as possible, it is imperative and urgent to formulate a new bankruptcy law with a unified market economic model. In the legislation of the new bankruptcy law, a professional and market-oriented administrator system was created. The following are comments on this issue.
First, the concept of manager
The administrator is the most important institution in the bankruptcy procedure. Usually, the administrator is established after the bankruptcy declaration, and takes over the bankrupt enterprise in an all-round way and is responsible for the bankruptcy liquidation affairs such as the custody, cleaning, valuation, disposal and distribution of the bankrupt property. Managers have different titles in different countries. It is generally called bankruptcy administrator in civil law countries and bankruptcy administrator in Japan. In common law countries, it is usually called bankruptcy administrator. In China's current bankruptcy law, it is called liquidation group.
The concept of manager has broad sense and narrow sense. The administrator in a narrow sense is only responsible for the work in the bankruptcy liquidation procedure, so it is also called bankruptcy administrator. The administrator in a broad sense also undertakes the management work in the reorganization procedure (usually called the reorganizer). The current bankruptcy law stipulates that the liquidation group will be appointed after bankruptcy declaration, and the concept of narrow administrator is adopted. However, the new draft bankruptcy law combines the three stages of bankruptcy liquidation, reconciliation and reorganization into one, and the work of the administrator spans three procedures from the date of accepting the case, using the broad concept of administrator, so it is called administrator, not bankruptcy administrator.
It is inappropriate to call the bankruptcy administrator the liquidation group in the bankruptcy law. The concept of liquidation group originated from the title of liquidation organization in enterprise and company law, but it is still used in bankruptcy law, and only emphasizes its liquidation activities, which can not fully reflect its role in bankruptcy procedure, but may confuse bankruptcy procedure with enterprise dissolution liquidation procedure. In addition, the concept of liquidation group is literally understood, and its composition should be more than two persons, which may not be suitable for the actual needs of bankruptcy cases, nor does it conform to the practice that one person is usually the administrator in the legislation of various countries. Therefore, the new bankruptcy law was renamed as the administrator.
There are many theories about the legal status of managers. For example, the trust theory in Anglo-American law system, the agency theory, status theory and consortium representative theory in continental law system, as well as the special system theory, legal representative theory of bankrupt enterprises and liquidation corporate organ theory in Chinese academic circles. In the process of drafting the new bankruptcy law, the appointment, responsibilities and obligations of the administrator are stipulated according to the actual needs. However, judging from the substance of the current draft law, compared with the old law which emphasized the official position of the administrator, the creditors' meeting emphasized the selection, restraint and supervision mechanism of the administrator, which greatly changed the legal status of the administrator, and the administrator would mainly represent the interests of the creditors.
Second, the defects of the current legislation.
The current legislation stipulates that the liquidation group with government officials as the main body has a strong administrative color, and its purpose is to get administrative assistance from government departments when dealing with some problems in bankruptcy cases (such as employee placement). However, due to the characteristics of bankruptcy liquidation, such as great legal responsibility, strong professionalism, heavy workload and long cycle, this legislative model has produced many disadvantages in judicial practice.
First, the temporary liquidation group, mainly government officials, is loosely organized, and its members still have their own jobs in government departments. Not only may there be conflicts in time, but because liquidation is not one's own job, it has little impact on work performance, job promotion and treatment improvement, and it is difficult to devote oneself wholeheartedly, which often affects the efficiency of bankruptcy liquidation.
Second, generally speaking, members of the liquidation team do not have the professional knowledge of bankruptcy liquidation and need the guidance and even training of the court. However, the liquidation group will be dissolved immediately after the end of the case, and a new liquidation group may be formed by new people after accepting new cases, which will lead to an increase in the workload of the court, a waste of judicial resources, and low liquidation efficiency, which will inevitably harm the interests of creditors. The trial and liquidation of bankruptcy cases may fall into a strange circle of low quality and low efficiency.
Third, the administrator should have an independent legal status to ensure the fair performance of his duties. The relevant departments of the local government are not only the competent departments of state-owned enterprises, but also the representatives of property owners. They act as the liquidation group, in fact, the shareholders of the debtor act as the liquidation work. Because of their relationship, local protectionism is inevitable and justice cannot be guaranteed. The current system of the liquidation group determines that it must be responsible to the government. Under the administrative guidance and intervention of the government, bankruptcy liquidation often deviates from the basic goal of protecting the interests of creditors and is replaced by the administrative goal of the government. Some responsibilities belonging to government departments, such as employee placement, were passed on to the liquidation team and the court. Major issues in liquidation are directly decided by the government, and the court loses its judicial independence and actually becomes the liquidation institution of the government.
Fourth, it is impossible to investigate the legal responsibility of the liquidation team for illegal dereliction of duty. As a temporary organization, the members of the liquidation group come from different government departments, and most of them are not paid. When the members of the liquidation group violate the law and neglect their duties and cause economic losses to creditors, the government departments to which they belong shall not bear legal responsibilities, because it is not caused by the responsibilities of government departments. When the losses are caused by members of the liquidation team from different government departments, it is even more impossible to divide the scope of responsibility. If it is regarded as the personal responsibility of the members of the liquidation team, it is also responsible for the negligent behavior under free working conditions, and the legal basis is not sufficient. After the liquidation group is dissolved, it is especially difficult to investigate its responsibility.
Therefore, getting rid of the disadvantages of the liquidation group system and changing it into the administrator system is an important step towards standardization and internationalization of the new bankruptcy law.
Third, the selection of managers
(1) Appointed time. When the bankruptcy procedure begins, different countries have different legislative provisions. Germany and other civil law countries start bankruptcy proceedings by declaring bankruptcy, while Britain and other common law countries mostly start bankruptcy proceedings by accepting cases.
The new draft bankruptcy law stipulates that after the bankruptcy case is accepted, the designated administrator will take over the bankrupt enterprise. At this time, the debtor has not completely lost the right to manage and dispose of the property, so it is controversial whether it is appropriate for the administrator to take over the bankrupt enterprise, whether it has a legal basis and whether it harms the debtor's rights and interests. After the bankruptcy case is accepted, the debtor can still carry out business activities, despite the necessary restrictions.
I think this provision is inappropriate. The main reason for the problem is that the new draft bankruptcy law combines the acceptance stages of bankruptcy liquidation, reconciliation and reorganization into one. The purpose of the merger regulation is to reduce the number of clauses in the bankruptcy law as much as possible, but in this way, not only the different characteristics of the acceptance stage of the three procedures can not be specified, but also the responsibility of the administrator in the acceptance stage of the three different procedures and even in the subsequent procedures is confused to some extent.
The fundamental way to solve the problem is to formulate three different procedures systematically and independently. Although this will increase the number of clauses in the bankruptcy law, it can ensure its scientificity, integrity and systematicness, and there will be no problems that are difficult to operate because of unclear clauses or chaotic procedures. However, it may be difficult to make fundamental corrections under inertia, and the remedy can only be to make adjustments for every possible problem. However, system chaos is inevitable.
(2) the method of choice. Different countries have different ways to choose managers. Some are only elected by the imperial court, such as Japan and France; Some are only elected by creditors' meetings, such as Britain and the United States; There are also creditors' meetings, supplemented by institutions such as courts, or vice versa, such as Germany. The way to choose the administrator is often related to the legal status of the administrator and creditors' meeting in a country's legislation. Judging from the development history of bankruptcy law, bankruptcy laws in various countries generally seek a method of combining court appointment with creditor appointment. Neither the absolute designation of the court nor the absolute designation of the creditor is the development trend of modern bankruptcy law.
According to the current bankruptcy law, the members of the liquidation team are appointed by the court from the higher authorities of enterprises, government finance departments and other relevant departments and professionals. Among other disadvantages, it is more efficient to appoint the administrator by the court than by the creditors' meeting. However, the work of the administrator is closely related to the interests of creditors. If the administrator is completely appointed by the court, the interests of creditors may be ignored. Therefore, in this regard, creditors must be given a certain right to participate or decide.
In the legislative process of the new bankruptcy law, some people advocate that the court should appoint an administrator or a temporary administrator before the first creditors' meeting. The first creditors' meeting may confirm the administrator appointed by the court, or may appoint the administrator by itself. The administrator appointed by the court shall not resign before the creditors' meeting elects other administrators. If an individual creditor thinks that the administrator has an interest in this case, which may affect his fair exercise of his functions and powers, or has violated the law and harmed the interests of creditors, he may request the court to replace him, and the court will make a judgment. The current draft of the new bankruptcy law basically adopts this model. However, some people argue that the administrator should still be appointed by the court, and the creditors' meeting only has the right to raise objections and ask for replacement.
The author thinks that the former idea is more appropriate, but there are still some operational problems to be solved. Whether the creditors' meeting decides to confirm or select the administrator is based on the general resolution standard or the special resolution standard? How does the court or creditors' meeting choose the administrator, by bidding or by other means? How to embody fair competition? When the creditors' meeting changes managers, how can the work be handed over, and can the subsequent managers revoke the improper behavior of the previous managers? These issues need to be further clarified through legislation.
The legislation of various countries usually stipulates that the selection of managers should be based on the principle of one person, but more than one person can be appointed when necessary. When there are several administrators, * * * shall jointly perform their duties, and may be responsible for them with the permission of the court. It should be noted here that although the administrator only appoints one person, not all the bankruptcy management work is completed by one person. The administrator may employ a law firm or an accounting firm as a working organization or a professional to complete the management of bankruptcy affairs under its command.
(3) Election qualifications. Different countries have different legislative provisions on the qualifications of managers. British bankruptcy law stipulates that only natural persons can be administrators of bankruptcy cases, and legal person organizations cannot be administrators. Bankrupts who have not paid off their debts are not qualified for this position. The positive condition for a manager to hold a post is to join a professional organization recognized by the government or directly apply for a personal practice license issued by the industrial and commercial department. French administrators can only be appointed by the court from the list drawn up by the National Committee, and the court can replace the administrators ex officio or upon application. In Japan, even if a person who meets the general qualification of bankruptcy administrator has an interest in bankruptcy cases, whether he can perform his duties fairly may be doubted, and he should not be elected.
China's current bankruptcy law has adopted different provisions on the membership of liquidation group from other countries in the world. The members of the liquidation group shall be appointed by the court from relevant departments and professionals such as the superior competent department of the enterprise and the financial department of the government. In practice, because the court doesn't know who can be appointed as a member of the liquidation team in the relevant government departments, it can only send a notice to the relevant government departments to set up a bankruptcy liquidation team, and the relevant government departments will decide the list of specific personnel to participate in the liquidation team, and then the court will issue a letter of appointment to the relevant departments and personnel. Therefore, although the members of the liquidation group are appointed by the court, they are actually decided by the local government.
In the new draft bankruptcy law, the liquidation group system has been changed, a professional and market-oriented manager system has been established, and the positive and negative qualifications of managers have been stipulated. According to its preliminary design, the administrator will be the following organizations, institutions or personnel: (1) a liquidation group established according to law or designated by the court; (2) Social intermediary institutions such as law firms, accounting firms and bankruptcy liquidation courts established according to law; (three) personnel with relevant professional knowledge and professional qualifications. Where an organization or institution acts as a manager, it shall employ personnel with relevant professional knowledge and professional qualifications to assist in the work. In terms of negative qualifications, the draft of the new bankruptcy law intends to stipulate that one of the following circumstances shall not serve as an administrator: (1) one who has been criminally punished or has other bad records; (2) Certified public accountants, lawyers, etc. The practicing certificate has been revoked; (3) Having an interest in the case; (4) The court thinks that it is not suitable to be an administrator.
In the process of drafting the new bankruptcy law, there are the following disputes about the qualification of the administrator:
First, whether natural persons can be managers. Some people think that only institutions can act as managers. They think that the social reputation and compensation ability of natural persons are not enough to undertake the duties of managers. Opponents believe that if only institutions are managers, small bankruptcy cases will lead to high bankruptcy costs and waste of social resources. The author believes that managers should not be just an institution. First, it does not conform to the practice that many countries allow or only allow natural persons to be managers. Second, this is the traditional discrimination against individuals and individual rights in China's planned economy. In fact, only individuals bear full legal responsibility for their actions, and the problem of insufficient property compensation ability can be solved through professional liability insurance.
Second, in this new draft bankruptcy law, the content that "a liquidation group established according to law or appointed by the court" can also serve as the administrator has been added. It is said that this is in consideration of the policy bankruptcy of some enterprises, and it is also necessary for the court to appoint a liquidation team from relevant government departments. This will make all the disadvantages of the old system continue to the new law, but there is no solution to the problem. The author has been considering whether the policy bankruptcy of state-owned enterprises is entirely operated by government departments. Moreover, the so-called liquidation group established according to law is based on what law and how to establish it, and the new bankruptcy law has no provisions. Therefore, the author believes that this provision should be revised.
Third, the confirmation of the manager's qualification. There are two issues involved here. First, whether it is necessary for institutions to obtain the professional qualifications of managers. Some people think that the professional qualification of managers only refers to the qualifications of individuals, and there is no professional qualification of institutions. Law firms, accounting firms, bankruptcy liquidation firms and other social intermediary institutions established according to law can all serve as managers, but the staff dispatched by them should have the professional qualifications of managers. Some people think that not all law firms and accounting firms are competent for bankruptcy management, so they should also set up institutions with professional qualifications and standardize them through the examination and annual inspection system. Otherwise, it will affect the bankruptcy procedure and increase the loss risk of the parties to let those institutions that do not have professional knowledge and corresponding ability act as administrators. Second, how to confirm personal qualifications. Some people think that not all lawyers, certified public accountants, etc. Can be competent for the work of managers, so we should establish a qualification examination system for managers. Some people think that bankruptcy management requires higher practical ability of managers, and it is impossible to guarantee their corresponding ability only by examination, so it is also necessary to emphasize that people with practical experience and performance should be absorbed into the management team through examination. Others think that as long as you have the qualification of lawyer and certified public accountant, you can obtain the qualification of manager, and there is no need to take the exam again, otherwise it will cause new obstacles to market access, monopoly and hinder fair competition.
Without a special qualification management system, there may be a phenomenon of supplementary number; The establishment of qualification examination and other systems may also cause obstacles to market access. This is really a dilemma. Considering that the administrator system is established for the first time in China, it should be strictly managed. The author once advocated that the government should set up a qualification examination and assessment system for the professional qualifications of individuals as managers, and the qualifications of institutions as managers should be determined according to legal conditions. However, when discussing this matter with the person in charge of the China Institute of Certified Public Accountants, he proposed that the qualification management of the government should be changed to the qualification of the relevant association after training, and no special qualification examination should be set up. I think it makes sense. It is more appropriate to deal with it in a compromise way. In addition, the provisions on the qualification of administrators should be promulgated at the same time as the new bankruptcy law to ensure sufficient preparation time for implementation.
Fourth, the provisions on negative qualifications are not clear. First, the regulation of "having been criminally punished or having other bad records" is too strict, and it should not include negligent crimes such as traffic accidents. In addition, the so-called "other bad records" in the "bad" includes what circumstances, "records" refers to who made it through what procedures, there is no corresponding explanation, it can not be implemented in practice. Second, what are the situations in which "the people's court considers it inappropriate to be an administrator"? This may give the court too much discretion and infringe on the legitimate rights of others. The new law stipulates that the creditors' meeting has the right to recall the administrator appointed by the court and appoint another one. If the court considers it inappropriate, there is no provision in the legislation on how to deal with conflicts. During the deliberation in the National People's Congress Standing Committee (NPCSC), some members also raised objections to these issues.
It should also be pointed out that the administrator in the reorganization procedure, that is, the reorganizer, emphasizes not only the legal or accounting expertise required for liquidation activities, but his ability to run the enterprise. Therefore, in some countries, the administrators in bankruptcy liquidation procedure and reorganization procedure serve separately, and professional entrepreneurs and administrators should be more suitable candidates for reorganization. The new draft bankruptcy law should also make different provisions on this, but it is difficult to do so under the condition that the acceptance stages of bankruptcy liquidation, reconciliation and reorganization are combined into one. Four. Duties of the bankruptcy administrator
China's current bankruptcy law and judicial interpretation stipulate the responsibilities of the liquidation team in the bankruptcy liquidation procedure, mainly taking over the bankrupt enterprise, liquidating, recovering, managing, disposing and distributing the bankrupt property, deciding whether to perform the contract and conduct business activities within the liquidation scope, confirming the right of exclusion, right of set-off and right of recall, and participating in litigation and arbitration activities on behalf of the bankrupt enterprise.
However, there are also some problems in the provisions of the responsibilities of the liquidation group. For example, Article 73 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Enterprise Bankruptcy Cases stipulates that the liquidation group shall send a written notice to the debtors and property holders of bankrupt enterprises, requiring them to pay off their debts within a time limit or deliver their property to the liquidation group. If the debtor and the property holder of a bankrupt enterprise have objections, they shall raise them within seven days after receiving the notice, and the court shall make a ruling. If the debtor and the property holder of the bankrupt enterprise neither pay off the debts nor deliver the property to the liquidation group after receiving the notice, and do not raise any objection within the prescribed objection period without justifiable reasons, the liquidation group shall apply to the court for compulsory execution after the court makes a ruling.
Accordingly, the written notice issued by the liquidation group to the debtor and property holder of the bankrupt to pay off the debts and deliver the property has the same legal effect as the payment order stipulated in Article 19 1 of the Civil Procedure Law, and the objection period is short and inappropriate. It makes the written notice of the liquidation group have the nature of exercising judicial power, which is not only inconsistent with the legal status of the liquidation group, but also an infringement on the litigation rights of the other party. In addition, the court's decision to deal with the objections raised by the other party on substantive civil rights and obligations is also a restriction and deprivation of their litigation rights. The author thinks that the liquidation group, as the administrator of the bankrupt property (that is, a party to a civil dispute), can and should send a notice to the debtor and the property holder of the bankrupt enterprise, asking them to pay off their debts or deliver the property, but when the other party objects to this, the liquidation group should solve the dispute through litigation. The written notice sent by the liquidation group to the other party cannot be enforced even if it is not answered.
In addition, according to relevant judicial interpretations, it is entirely up to the court or the liquidation group to decide whether the bankrupt enterprise will continue its production and operation after the bankruptcy declaration. However, because this issue has a great impact on the interests of creditors, the administrator's decision should be passed by the creditors' meeting, not by the court or the administrator.
In the draft of the new bankruptcy law, the responsibilities of the administrator are more perfect. When the administrator implements the debtor's real estate ownership, mining rights, land use rights, intellectual property rights and other important management actions, such as transferring all inventory or business, borrowing money, setting property security, recovering collateral, etc., it shall promptly report to the creditors' committee and obtain its permission. If the administrator commits one of the above acts, he shall obtain the permission of the court before the first creditors' meeting is held. V. Remuneration and responsibilities of the Administrator
The current bankruptcy law does not stipulate the remuneration of the liquidation team. In judicial practice, government officials who are members of the liquidation team generally do not receive remuneration, while lawyers, certified public accountants and other professionals receive remuneration, and the amount is determined by the court.
Bankruptcy legislation in all countries stipulates that the administrator has the right to receive remuneration. Some countries, such as Japan and Germany, stipulate that the amount of remuneration for managers is determined by the court. Usually, when determining the amount of remuneration, the court needs to consider the complexity of the bankruptcy case, the size of the bankruptcy property, the proportion of bankruptcy distribution, the time and energy spent by the administrator, the degree of its efforts, the charging standards of peers and other factors. In the United States, in order to prevent the custodian from charging excessive fees, the bankruptcy law sets a maximum limit on the custodian's fees, that is, the fees shall not exceed 3% to 15% of the total bankruptcy property.
The new draft bankruptcy law stipulates that the administrator has the right to receive remuneration. Whether the remuneration of the administrator is decided by the court or by the creditors' meeting is also a controversial issue in legislation. The current draft stipulates that the remuneration of the administrator shall be decided by the creditors' meeting. However, before the first creditors' meeting, the remuneration of the administrator was decided by the court.
The author believes that there is a conflict of interest in determining the remuneration of the administrator at the creditors' meeting, and there may be some phenomena such as the failure of negotiation between the two parties on remuneration, the absence of the administrator and the absence of the bankrupt property, which delays the bankruptcy procedure and is more suitable for the court to determine it. However, if the creditors' meeting has any objection to the remuneration of the administrator determined by the court, it has the right to make a request for reconsideration to the court for adjustment. In addition, the law should consider setting a standard for determining the scope of remuneration to facilitate implementation.
According to the new draft bankruptcy law, the creditors' meeting has the right to elect the administrator, so the administrator should be responsible to the creditors' meeting, not just to the court, otherwise it is inconsistent with the election mechanism. If the liquidation group has any act that harms the interests of creditors or other illegal acts, the court may correct it upon the application of creditors or ex officio, or replace incompetent members of the liquidation group upon the application of creditors or ex officio.
The draft of the new bankruptcy law stipulates that managers should be diligent and conscientious, faithfully perform their duties, and should pay attention to managers. If the administrator violates his duties and obligations and causes damage to the debtor's property or creditors, he shall be liable for compensation. When the managers are in the majority, they shall bear joint and several liabilities. In the new bankruptcy legislation, in order to ensure that the legal responsibility of managers for illegal dereliction of duty is investigated, the author believes that managers of public institutions should participate in professional liability insurance. About the author: Wang Xinxin, a professor and doctoral supervisor at the Law School of Renmin University of China, is a member of the drafting working group of the Financial and Economic Committee of the National People's Congress.