Research On The Bankruptcy System Of Our National Colleges And Universities

Private universities and colleges play an important role of higher education in China.Recently private universities and colleges have sprung up and flourished.We should realize that reasonable exit mechanism is the key to promote the development of private higher education.Moreover,with the decline of the college age population,some weak private universities and colleges will collapse inevitably.However,China's "Enterprise Bankruptcy Law" does not include private universities and colleges into the scope of application,and the exit mechanism of "Private Education Promotion Law" is far from perfect.In contrast,the exit mechanisms of higher education developed countries and regions are complete.We can draw lessons from extraterritorial experiences to solve the legal problems in the exit of China's private universities and colleges.Bankruptcy exit way is the main exit mode of private universities and colleges.This article discusses the feasibility of giving the bankruptcy ability to private universities and colleges theoretically and practically.In theory,private universities and colleges are public welfare legal persons.First of all,the qualification of legal person and the right of legal person property provide private universities and colleges necessary conditions for application of bankruptcy system.Secondly,the public welfare of private universities and colleges calls for bankruptcy prevention procedures to realize the humanistic care to public organizations.Based on the practice,I examined the legislative situations in the bankruptcy ability of private universities and colleges at home and abroad,and the judicial practices in the bankruptcy ability of private universities and colleges in China.General bankruptcy pattern has become the legislative trend of modern bankruptcy law.The United States and Japan all have adapted the general bankruptcy pattern.China's "Enterprise Bankruptcy Law" adapts special legislation,only provides the enterprise legal person with the bankruptcy ability.However,Article 135 of "Enterprise Bankruptcy Law" in China provides : "If the liquidation of an organization other than enterprise legal person belongs to bankruptcy liquidation,the procedures prescribed in this Law shall be applied." It can be seen as a fallback provision.The provisions of "Private Education Promotion Law" treat the insolvency as the termination of private schools.With the relevant judicial practices which recognize the insolvency as the cause of private universities and colleges' bankruptcy liquidation and the merger and reorganization specific examples of private universities and colleges,private universities and colleges may not only have the bankruptcy liquidation ability,but also have the generalized bankruptcy ability in the future.On the basis of affirming the bankruptcy ability of private universities and colleges,I make a preliminary analysis on the bankruptcy system of private universities and colleges.The construction contains adjusting the reasons of the bankruptcy and the insolvency sequence of the bankruptcy liquidation;listing the scope of the main bodies in the application for bankruptcy;designing pertinently on different problems compared with the general enterprises when private universities and colleges apply bankruptcy prevention procedures;designing the supporting mechanism of student placement to ensure the smooth connection of students' study when private universities and colleges go bankrupt.Specifically,I hold that the administrative power should be reasonably involved in the bankruptcy proceeding.Administrative power cooperates with judicial power to ensure the orderly in bankruptcy of private universities and colleges.In addition,I suggest that it is necessary to compel private universities and colleges to set up the risk guarantee fund to ensure the full return of tuition and fees when private universities and colleges have bankrupted.To promote the healthy development of private higher education calls for improving the exit mechanism of private universities and colleges.Giving private universities and colleges the bankruptcy ability is not only helpful to solve the situation that our country's legislation is unable to apply,but also helps private universities and colleges on the verge of bankruptcy or the bankrupted private universities and colleges reborn by adopting the new methods of bankruptcy reconciliation and bankruptcy reorganization.