Study On Improving China’s Linkage Of System To Bankruptcy Procedure

In the socialist market economy,the creditor’s rights and debts among various market entities are intertwined,and ensuring the smooth realization of creditor’s rights and debts is the key factor for the safe and high-quality development of market economy.As a way to realize abnormal debts,the execution procedure and bankruptcy procedure have the responsibility to escort the development of market economy.In 2015,the establishment of the system of "execution of bankruptcy proceedings" opened up the channel of convergence and transformation between the two procedures,aiming at providing strong support for resolving "difficulties in execution",clearing "zombie enterprises",improving the efficiency of judicial case handling and enhancing judicial credibility.However,since the implementation of the system,the success rate of bankruptcy procedure transformation has not been greatly improved.The reason is that the system has defects in system design,so it needs to be improved in practice.In order to better promote the development of "execution of bankruptcy proceedings" and meet the needs of carrying out practical work,this paper starts from the basic theory of the system,analyzes and interprets the contents of legal documents from four aspects: starting mode,applicable elements,jurisdiction court and specific process,and finds out the legislative deficiencies and problems existing in practice in the process,which are as follows: First,the legislative level is low.Although the current legal provisions as a whole form the double coverage of the principle provisions and the detailed criteria,the order of effectiveness is still low.In other words,on the premise of lack of legislation,establishing the system directly in the form of judicial interpretation will inevitably lead to the suspicion of overstepping the legislative power,which may adversely affect the legitimacy of the procedure.Second,the starting method is single.China’s system of "execution of bankruptcy proceedings" is consistent with the Enterprise Bankruptcy Law as a whole,which excludes the court from initiating the procedure according to its authority,and lacks public power to intervene and promote it.The direct consequence is that bankruptcy is weak and the applicable value of the procedure is not obvious.Third,there is no driving force for the parties to start the system.The biggest defect of application doctrine is that it is easy to be driven by interests,which causes the parties to abuse their rights or be lazy in exercising their rights,and hinders the system of "execution of bankruptcy proceedings" from playing its role.Fourth,the setting of court jurisdiction is too idealistic.The judicial interpretation stipulates that the jurisdiction will be raised to one level,which does not fully consider the construction of court structure,and ignores the practice of training the ability of handling bankruptcy cases of grass-roots courts.Fifth,the bankruptcy procedure is cumbersome and the transformation efficiency is low.Applying the same procedure to cases with different complexity ensures procedural justice to a certain extent,but it fails to grasp the true meaning of simplification and diversion,and lacks the pursuit of efficiency value,which hinders the improvement of transformation efficiency.In view of the above problems,in the process of combing the extraterritorial judicial experience,taking into account the differences between other countries and China in the fields of political and economic system,cultural background and spiritual inheritance,social ideology,etc.,this paper draws enlightenment from the legislation of Germany,Switzerland and Japan,which can be used for reference by our country,and corresponds to three aspects: legal basis,starting method and application of procedures.On this basis,this paper joins in the thinking and induction of the improvement of China’s "execution of bankruptcy proceedings".Increase the provisions for the court to initiate execution of bankruptcy proceedings;Broaden the scope of the subject of applying for starting "enforcement and breaking";Adjust the jurisdiction of the court;Set up the summary procedure of bankruptcy proceedings.