A Study On The Initiated Mechanism In Bankruptcy Procedure

As the foundation-stone in the bankruptcy procedure, the initiatedmechanism acts an important role in the course of the operation of insol-vency laws. It not only provides a legal corridor for people to approachand uti1ize insolvency laws, in a sense, but also monifests the function andvalue of bankruptcy Laws. Therefore, the significance of the research inthe initiated mechanism is moreeover the consummation of the concretesystem, but it directly related with the legislative orientation and develop-ing direction. Based on a theoretic analysis and comparative study of theinitiated mechanism, the current Chinese Legislative or judicial practice isput forward in the system which is aimed at reforming the initiated mech-anism of bankruptcy proceeding. The thesis contains four parts, approxi-mately forty thousand words.Part One, The legal principle analysis for the intiated mechanism ofinsolvency procedure. Taking the limitation of individual enforcement as abreakthrough point, the paper holds that the purpose of bankruptcy lawsis to solve a collective-action in the course of debt executing. This goalwill be realized by petition in insolvency issued by a creditor or debtor.But because of their different interests pusuit, they have different motivewhile filling a petition.Part Two, Sefl-criticism for current state of the initiated mechanismof China's bankruptcy Laws. Firstly, the thesis gives an introduction tothe current legislation and characteristics of the initiated mechanism inChina's bankruptcy laws. Secondly, it points out that the 1imitations indirective thoughts of bankruptcy laws are foundamental couses whichmake the initiated mechanism serious imperfect. At last, the thesis analy-ses the malpractices and effections of operation of current initiated mecha-nism in detail.Part Three, Comparing the related systems between civil law systemand Anglo-AInerican legal system. After introducing and evaluatingbriefly legislative modes of the initiated mechanism in some countries suchas USA, UK, Japan, France, GFR and Taiwan of China, the authorthinks that many aspects, fOr example, necessary restriction in quatifica-tion while creditor filling petition, procurator starting the bankruptcyproceeding and the workouts will provide beni fical prefrerence for reform-ing China's bankruptcy laws.Part Four, Reconstructing the initiated machenism of Chinesebankruptcy procedure. Firstly, the paper introduces and assesses severalreforming plans put forward by schoolars at home. Secondly, the authorpresents a preliminary programme to remould the initiated system of Chi-nese bankruptcy procedure, which takes winding-up petition issued by acreditor or debtor as a dominant and takes starting proceeding by procura-tiorial organ filling petition as a supplement. At last, the author thinksthat the inso1vency proceeding is an inportant measure to settle but notthe only one. In fact, the workout is also an effetive mean to dispute overobligation in certain extent. On an occasion of workoout, the proceeding... Iin primarily under the control of the litigants rather than the court andthis can save a lot of dues and time, so new legislation should allow liti-gaents to utilize it and endow litigants with a selective right in applicationof the proceeding.In a word, the key of a succeful and valid insolvency Law is to build-ing a sets of scientific and consummate systems which could ensure a nor-mal operation of the bankruptcy proceeding, which is merely the first stepof the couse of reform the initiated mechanism of bankruptcy procedure.