On The Perfection Of The Starting Of Bankruptcy Procedure In The Process Of "Breaking Through Obligation"

The execution transfer bankruptcy system(also known as the "rigid transition" system)is an innovative mechanism of judicial work announced in 2015 in China.It creatively opens up the civil action execution procedure and the general bankruptcy procedure,allowing the execution court to transfer eligible execution cases to the bankruptcy court for examination on the premise of consulting the parties' opinions and obtaining written consent.Since the implementation of "breaking through persistently",considerable achievements have been made in dealing with the difficulties of civil litigation enforcement and bankruptcy initiation.However,due to the inherent shortcomings of the system itself and many challenges in practice,it is facing difficulties.From a theoretical point of view,there are always theoretical disputes about the system.Before the publication of the Guiding Opinion,the focus of the doubts was on the feasibility of the mechanism innovation.The doubters advocated that the execution and bankruptcy are essentially completely independent procedures.The direct connection between the two systems would lead to conflicts such as the execution and jurisdiction rights,the execution procedure and the bankruptcy trial links.After the formal establishment of the system framework process in the Guiding Opinions,in view of the predicament that the procedural system generally maintains the same low-level operation as the bankruptcy proceedings,the controversy of the theory circle on the "breaking through" as a special way to start bankruptcy centers on the mode of starting in the system,that is,the controversy between applicantism and authoritarianism.From the judicial practice analysis,according to statistics,the number of bankruptcy cases in our country has increased considerably since the implementation of the self-control system,the bankruptcy trial system construction has been carried out in an orderly manner,and the courts and courts around the country have accumulated a lot of work experience in promoting the convergence of fragmentation.However,in 2016 alone,nearly 8 million cases can not be executed in our country,and every year the "zombies" remain in the market without suspension of business.At the same time,the system itself also has some problems,such as unclear positioning,inadequate starting conditions and exclusion from participating in the distribution system.In addition,the parties have a negative attitude towards the initiation of the procedure.The construction of the relevant execution and bankruptcy trial system can not meet the actual needs,which makes the effective implementation of the "rigid break" system facing greater obstacles.Therefore,for the improvement of the system,first of all,we should return to the procedure itself.Starting from the disputes between bankruptcy start-up applicantism and authority doctrine in the "break-through of insistence",we should explain the particularity of the "break-through of insistence" procedure which connects the two major procedures through the process from independence to reunification between civil suit execution and ordinary bankruptcy procedure,and demonstrate that it is relative to the people in the field of corporate debt liquidation.The irreplaceability of the distribution system of litigation participation.Secondly,by comparing with the elements of ordinary bankruptcy proceedings,combining with the above-mentioned cases,this paper interprets the functions and powers of the court in the process of linking up the path of bankruptcy initiation,proves that the norms and practices of "breaking through" as a special path of bankruptcy have a tendency to enhance the position of the court's authority,explores the implication of private law autonomy behind the initiation of bankruptcy petitioner doctrine,and discusses the introduction of the law.The feasibility and rationality of the auxiliary starting path of authority doctrine.Finally,in view of the problems existing in the path of applicantism,this paper puts forward some suggestions for improvement,advocating the establishment of a compromise start-up mode that combines "applicantism as a supplement and authority as a supplement".On the one hand,it expands the scope of bankruptcy applicants under the circumstance of restricting "persistent break",and on the other hand,it improves the path of applicantism start-up by increasing the negative start-up responsibility of the responsible subjects.This paper lists the possible situations and introducing ways of constructing the path of "breaking through" bankruptcy initiation authority doctrine,and at the same time refines the path elements,emphasizes the court's duty of inquiry,notification and service,and reinforces the relief rights of the parties,in order to help the development and perfection of "breaking through" system.