Research On The Implementation Of The Law Of Bankruptcy

Difficulty in execution has always been a difficult problem that puzzles the development of court work.Especially,the difficulty in execution of cases involving enterprises has great damage to the realization of the legitimate rights and interests of the parties and the credibility of the judiciary.In order to resolve the difficult cases of execution caused by the absence of obvious property available for execution by the person being executed and the inadequacy of property to pay for all losses,the Supreme People's Court promulgated the Guiding Opinions on Several Questions Concerning the Transfer of Execution Cases to Bankruptcy Review(hereinafter referred to as the Guiding Opinions on Implementing Bankruptcy Review),effectively linking the execution procedure with the bankruptcy The production system plays an active role in optimizing the allocation of market resources and standardizing the market exit mechanism of zombie enterprises.It explains that although the promotion of the transfer of execution cases to bankruptcy review is driven by strong practical needs,such as market economy,policy orientation and judicial practice,it has a profound theoretical basis as a support,and is a system that can withstand the test of time.However,there are still some unsatisfactory conditions and some difficult problems in the actual operation of the system.By sorting out the relevant laws and regulations of the system,this paper tries to find out the factors that hinder the promotion of the system,as well as some deficiencies that can be perfected and improved.From the theoretical level,it is urgent to define the different functions of the execution procedure and the bankruptcy procedure,and the principle of creditor's rights liquidation.From the practical level,it is necessary to analyze the starting standard of the execution to bankruptcy,find out the shortcomings and put forward the optimum path.Secondly,it is necessary to solve the jurisdictional disputes of the execution to bankruptcy.Finally,it is necessary to sort out the effectiveness problems after the commencement of the procedure.It includes the determination of the effectiveness of the transfer,the ownership of financial rights in the transfer and the rules for the settlement of the execution costs.Therefore,based on the actual situation of our country at this stage,combinedwith the relevant experience of foreign courts in dealing with difficult cases,this paper puts forward a set of improvement programs for the implementation of bankruptcy system suitable for our national conditions.The aim is to end the inconsistency of the work of "breaking through persistence" in current judicial practice and improve the level of handling "breaking through persistence" cases by local courts by means of both theory and practice.It is mainly divided into four parts:The first part is an overview of the transition from execution to bankruptcy.This paper first introduces the legislative background of the transition from execution to bankruptcy,then defines the functions and liquidation principles of the execution procedure and the bankruptcy procedure respectively,analyses the internal logic of the connection between execution and bankruptcy,and finally draws a review of the problems existing in the relevant judicial interpretation.The second part is about the shortcomings of effective commencement of execution to bankruptcy and the way out.Aiming at solving the difficulty of starting from bankruptcy to bankruptcy in practice,this paper analyses the conditions of starting,finds out the shortcomings of the current starting system,proposes to construct a starting system based on applicantism and supplemented by authoritarianism,and tries to establish a public welfare starting system.The third part is about disputes and standard establishment of the jurisdiction of enforcement to bankruptcy.The jurisdiction of multi-type courts should be added to the disputes arising from the jurisdiction of the executed person's domicile in the process of execution to bankruptcy.In the hierarchical jurisdiction,it is suggested to try to break through the jurisdiction of intermediate courts and establish a normalized mechanism of the jurisdiction of grass-roots courts.The fourth part is imperfection and improvement of the validity of the examination of transfer of bankruptcy.Mainly on the decision to suspend execution,the removal and continuation of preservation,the payment of execution costs,and the ownership of property to sort out.