| The law and judicial interpretations stipulate that the litigation status of the bankruptcy administrator is twofold,namely "to represent the debtor in the proceedings" and"to participate in the proceedings in his own name".How to determine the litigation status of the bankruptcy administrator in different proceedings is an unavoidable problem in the theory and practice of bankruptcy law.As the relevant provisions on the litigation status of bankruptcy administrators in China are scattered in the Enterprise Bankruptcy Law and relevant judicial interpretations,the lack of systematic,refined and clear rules for dealing with them has made it difficult to seek relevant legal provisions in judicial practice.The legal status of the bankruptcy administrator determines its litigation status.Unlike foreign countries,China lacks a strong general statement on the legal status of the bankruptcy administrator,resulting in its litigation status being unclear.Judicial practice tends to regard Article 25(7)of the Enterprise Bankruptcy Law as a general provision regulating the litigation status of the bankruptcy administrator,which is actually influenced by the migration of the legal system of the liquidation group.From the legal nature of the bankruptcy administrator’s neutrality and relative independence,the concept of"representing the debtor in the litigation" as a general provision should be corrected,and"representing the debtor in the litigation" and "participating in the litigation in its own name"should be regarded as parallel and concurrent elements in the binary division of the bankruptcy administrator’s litigation status.In terms of "representing the debtor in the litigation",judicial practice has traditionally placed the bankruptcy administrator in the position of "representative of the litigation"in the adjudication documents,resulting in the concept of "representative of the litigation"exceeding the scope of joint litigation and causing confusion of legal concepts.The "litigation representative" is the rightful meaning of the insolvency administrator"representing the debtor in the litigation",and the special litigation agent system of foreign countries can alleviate the contradiction in theory and system.In terms of "participation in litigation in its own name",the statutory litigation undertaking system provides a theoretical basis for the bankruptcy administrator to act as a party in litigation where the substantive rights and obligations are vested in the debtor.The choice of two kinds of litigation status of the bankruptcy administrator reflects the consideration of the two judgment mechanisms of the parties’ eligibility,namely,the traditional direct interest theory and the litigation undertaking theory.In the final analysis,the essence of determining the litigation status of the bankruptcy administrator in different lawsuits lies in the weighing of two values represented by two mechanisms of judging the eligibility of the parties:one is to respect the debtor’s status as a civil subject,and the other is to perform the duties of the bankruptcy administrator to achieve the purpose of bankruptcy law.After concretizing them,the substance is to consider whether the various types of litigation are infused with the unique institutional design of bankruptcy law.Taking it as the distinguishing standard for determining the litigation status of bankruptcy administrators in different lawsuits,it can properly handle the disputes in practice and construct a dualistic model of the litigation status of administrators in line with China’s bankruptcy legal system. |
