On Several Legal Issues Of Creditors' Meeting System

The bankruptcy procedure, in its essence, is an autonomous procedure of the creditors under the supervise of the court, therefore, it must be the creditors' autonomous organization that makes decisions on the substantive items concerned, and what this autonomous organization takes the form of is the creditors' meeting. Presently, there are five theories on the nature of the creditors' meeting among the bankrupt legal circles, that is: autonomous team theory, organization of the creditor team theory, factual assembling theory, the superior authority of the bankrupt financial group theory and legal person theory. Here, the writer holds that, the creditors' meeting is a procedure organization which is formed by the creditors in response to the court's notice or public announcement, in order to express the common will of all the creditors, to take part in the bankrupt procedure and to hold discussions and votes on the bankrupt issues. A creditors' meeting is formed by all the creditors. There must be a chairman in a creditors' meeting. Creditors' meetings are important to audit the creditors' rights, creditors, auditors and the liquidation team have the lawful right to dissent, the final authority to affirm the creditors' right comes to the people's court. There are three kinds of rules of procedure for creditors' meetings in the world. China has adopted the double standards of both numbers of the creditors and numbers of the creditors' rights. The resolutions of a creditors' meeting are bound to all the creditors, those creditors who dissent have the legal right to appeal to the people's court. The right of making up decisions will come to thepeople's court when repeated creditors' meetings can not resolve the plan of distributing the debtor's assets, those creditors who dissent may appeal to the people's court. In China, the legislation on the right of determination of creditors' meeting is relatively sufficient, but those on carrying out the right of practical participating and on the restriction and supervision to the procedure of the creditors' meetmgs are relatively weak, the day-to-day supervision to the bankrupt procedure can not replace the system of supervisor(s) of bankrupt, it will better achieve the goals of justness and efficiency to set up the system of supervisor(s) of bankrupt and it is necessary to supplement the present day system of bankruptcy by enacting the system of supervisor(s) of bankrupt.