Legality Classroom: Summary Of Bankruptcy Liquidation

In civil proceedings, after the court's judgment comes into effect, it is automatically performed by the debtor or is enforced by the court.

In bankruptcy cases, when a company is declared bankrupt by a people's court, it loses the right to manage and dispose of property. Debtors or creditors, as a party with interest, do not have the right to handle fair payment. Otherwise, it will inevitably damage others' rights and interests.

Although the court is responsible for hosting the whole bankruptcy proceedings, bankruptcy liquidation is not a simple civil execution. It involves complex and heavy property management and liquidation. In order to fully protect the interests of the relevant civil subjects in order to protect the interests of the relevant civil subjects in time, the bankruptcy administrator system is stipulated in all bankruptcy laws.

Generally speaking, Anglo American law is called "bankruptcy trustee", and the mainland law is commonly referred to as "bankruptcy administrator". In Taiwan, China is also known as "bankruptcy trustee".

I. The legal status of the bankruptcy liquidation group

The bankruptcy liquidation group refers to a special institution established in accordance with the law of bankruptcy, under the direction and supervision of the court, which takes over the bankrupt enterprise in full and is responsible for the custody, liquidation, valuation, handling and distribution of the bankrupt property.

After the announcement of bankruptcy, the management and liquidation of the bankrupt property is complicated and heavy, and a large number of legal affairs and non legal affairs are adulterated. Therefore, it is far from the ability of the court's manpower and material resources, so it is necessary to set up a special clearing institution.

The bankruptcy liquidation group is the most important institution in the bankruptcy proceedings, which specifically manages all matters in bankruptcy, and other organs or organizations in the bankruptcy proceedings only play supervisory role.

Whether the bankruptcy proceedings can be carried out smoothly, fairly and efficiently is closely related to the bankruptcy liquidation team.

The bankruptcy liquidation group of our country is similar to the bankruptcy administrator in foreign legislation, but there are different opinions on its legal status both at home and abroad.

(1) several doctrines on the status of bankruptcy administrator abroad

As for the legal status of the insolvency administrator, there are several theories in foreign theoretical circles:

1, the agent said.

Agency is the earliest theory about the legal status of bankruptcy administrator.

It is believed that the bankruptcy administrator is an agent who exercises the duty power in the bankruptcy proceedings in the name of others.

In general, Taiwan scholars generally divide agency theory into bankruptcy agency theory, creditor agency theory, bankruptcy agent and creditors' agency theory.

The principal basis of agency theory is that bankruptcy liquidation is a common civil procedure, which is essentially a non litigation category. The legal relationship thus formed is different from that of a general civil agent. In bankruptcy proceedings, the bankruptcy proceedings are actually attributable to the parties to bankruptcy, whether they are litigation or non litigation, and they are not attributable to themselves.

Therefore, it is most closely related to the agency relationship in civil law, and the bankruptcy administrator undoubtedly belongs to the category of agents.

2, duty theory.

The theory starts with the nature of bankruptcy proceedings.

3.

(two) several viewpoints on the status of bankruptcy liquidation group in China

1, special agencies say.

According to the actual situation of China and the provisions of the bankruptcy law, the agency theory, the job description theory and the bankruptcy consortium representative can not reveal the legal nature of our bankruptcy liquidation group scientifically and accurately.

The former two said that they were deficient and not enough to believe that the representatives of the consortium could not be the theoretical basis of the liquidation group's nature, because our country only used bankrupt property without legal terms of the bankruptcy syndicate, so the bankruptcy liquidation group was a special institution to take over the bankrupt property and liquidate the bankrupt property.

2, the legal representative of bankrupt enterprise said.

According to the statement, the bankruptcy liquidation team should engage in the necessary civil activities on behalf of the bankrupt enterprise, and the disposition and distribution of the bankruptcy property within the company is the legal representative of the bankrupt enterprise.

The reasons are: (1) bankruptcy proceedings are similar to liquidation in nature, while liquidation procedures should pfer the right of disposition to liquidation institutions.

According to the principle of enterprise law, when the enterprise is dissolved, its legal personality is regarded as a continuation.

During this period, the bankrupt enterprise can become the main body of the right. The representative of the main body can not be bankrupt or creditor. It can only be the bankruptcy liquidation group.

(2) the purpose of bankrupt enterprises is to make creditors fairly compensated, so the power of bankruptcy and liquidation team to protect and dispose of their property has been expanded.

As the bankruptcy liquidation team is the representative of the bankrupt enterprise, its effectiveness and participation in the proceedings are attributable to the bankrupt enterprise.

3, liquidating the legal person organ said.

It is believed that after being declared bankrupt, an enterprise legal person can become a liquidating legal person. It takes bankrupt property as its property right foundation with legal person qualification, and carries out necessary civil activities independently on this basis.

4. double status theory.

According to this theory, the bankruptcy liquidation group has dual nature. It is the executive organization selected by the people's court to assist the court in liquidation, and it is also an independent civil subject and litigation subject. It can carry out liquidation related activities independently, and is a party in the litigation relating to the bankruptcy property. Its dual nature is the objective need for fulfilling its duties.

(three) the author's understanding of the legal status of the bankruptcy liquidation team.

The twenty-fourth provision of China's bankruptcy law stipulates that the members of the liquidation group shall be designated by the people's court from the relevant departments and professionals of the higher level departments in charge of the enterprise, the financial departments of the government, etc.

The liquidation team is responsible for and report on the work of the people's court.

Accordingly, the legal status of China's bankruptcy liquidation group is a special organ to independently liquidate debts and liquidation matters.

The reasons are:

1, the liquidation group is a civil subject.

The twenty-fourth provision of China's bankruptcy law stipulates that the liquidation team can carry out necessary civil activities according to law.

The twenty-sixth provision stipulates that the liquidation team may decide to terminate or continue to perform the contract which has not been fulfilled by the bankrupt enterprise.

Therefore, the law has given the liquidation group certain capacity for civil rights and civil conduct.

2, the liquidation team is an independent organ.

Although the liquidation group is appointed by the people's court and supervised by the people's court, it is also supervised by the creditors' meeting. However, the liquidation team is not affiliated with the government, nor is it an agent of the bankrupt debtor or creditor, nor is it the executive body or subordinate organization of the people's court.

It is fair to safeguard the interests of creditors and debtors, and independently exercise their functions and powers in accordance with the law in accordance with the law, and complete liquidation matters.