On Restricting System Of Power About Bankrupt Procedures

In the practice of adjudgement , the court almost becomes government's tool. Administrative power frequently exists in the process of the cases, then the protection of creditor's interest, which is the inherent goal of bankruptcy procedure, gives place to the government's interest. On the other hand, the court's power is much stronger compared with creditor's. It's common that creditor's interest is infringed by. The creditor's conference is only a formal element required by law and the creditor's self-government haven't been achieved yet. There're still big problems in liquidation team's running, e.g. misuse of authority and negative, but the court lacks of efficient superintend. How to restrict the administrative power in a bankruptcy process has become an important task. On Aug.27th,2006, National People's Congress of the People's Republic of China established a new bankruptcy law, which used advanced experience of abroad for reference and it makes a coexistence of liquidation, reconciliation and reformation and for the first time it established rules of bankruptcy manager and bankruptcy committee. This paper will discuss how to exert powers in bankruptcy procedures and keep a balance between each other by analyzing the new bankruptcy law and laws of HongKong, Taiwan and abroad.This paper can be devided into four parts:The first part clarifies the neccesity of balance of powers in bankruptcy procedures. The author analyzes this subject from two aspects: first, it analyzes the status quo of imbalance of powers in bankruptcy procedures and aftereffect of it. then, it clarifies the neccesity of balance of powers in bankruptcy procedures from a point of view of guaranteeing realizing the goal and justice of law.The second part mainly studies the powers of the court, creditor's conference, bankruptcy manager, bankruptcy superintendent and the balance system of them. First, it makes suggestions of perfecting jurisdiction. Then, it analyzes creditor's conference's authority and studies the balance between the court and creditor's conference. The author points out it is necessary to rule creditor's conference's self-government including the injunction of creditor's conference; and at last, it analyzes bankruptcy manager in detail including many legislative examples of foreign countries. The paper also studies the superintendent system of the court and creditor's committee in order to regulate bankruptcy manager's behavior.The third part brings forward a point view that we should regulate Administrative power in bankruptcy procedures and. The author suggests we can set up a Bankruptcy Administration Agency, in the meantime it studies the agency's authority.About judicial superintendent ,The author analyzes ,It mainly include two aspects: first, the superintendent of superior courts. The author discusses the scope of superintendent, the starting of superior superintendent, and the measures adopted by superior courts; second, the superintendent of People's Procuratorates. The author figures out that we should establish procuratorate's superintendent in China and discusses how to use procuratorate's superintendent in bankruptcy procedures.The last part is epilogue generalizing the balance of powers above. The author points out that the aim of the superintendent system is to correct errors in bankruptcy procedures to guarantee justice by distributing rights and obligations properly between each participant.