On The Civil Liability Of Enterprise Managers For Failing To Perform The Obligation Of Cooperating With Liquidation In Bankruptcy Proceedings

With the continuous deepening of supply side structural reform and the gradual establishment and improvement of enterprise exit mechanism,the number of enterprise bankruptcy cases accepted by Chinese courts is increasing rapidly.After the enterprise enters the bankruptcy procedure,if the enterprise managers do not perform the obligation of bankruptcy cooperation and liquidation,it may lead to the manager’s inability to work normally,and even lead to the property loss of the bankrupt enterprise or the state of unknown financial situation,so that the creditor’s rights of the bankrupt enterprise can not be paid off and infringe on the interests of the creditors.Therefore,it is increasingly urgent to improve the bankruptcy liquidation obligation system.However,the current provisions on the obligation of bankruptcy cooperation and liquidation in China’s bankruptcy law lack relevant contents of civil liability,The civil liability of enterprise managers can only be investigated in accordance with the minutes of the civil and commercial trial work meeting of the national court(hereinafter referred to as the minutes of the Ninth People’s meeting)and the reply of the Supreme People’s Court on how to deal with the debtor’s application for bankruptcy liquidation with unknown personnel or unclear property status(hereinafter referred to as the "No.10 reply").With the surge in the number of bankruptcy cases,there are more and more disputes caused by the failure of enterprise managers to perform the obligation of bankruptcy cooperation and liquidation.At this time,there are great disputes about the legal basis and scope of civil liability of enterprise managers.From the perspective of the principles of civil law,the obligation of bankruptcy cooperation and liquidation is the legal obligation of enterprise managers in the bankruptcy procedure,and those who violate the legal obligation bear the tort liability of omission.This liability is different from the liquidation liability stipulated in the company law.It cannot be attributed according to the principle of denial of corporate personality,but should be attributed according to the principle of tort liability,and the scope of liability of the bankrupt enterprise for property loss or inability to liquidate caused by the behavior of enterprise managers should be identified according to the principle of tort liability.In judicial practice,it is generally believed that enterprise managers should bear the liability for compensation if they do not perform the obligation of bankruptcy cooperation and liquidation.However,in the identification of liability,there are some problems,such as the inconsistency of applicable legal basis,the unclear identification standard of the subject of responsibility and the scope of compensation,and the difference in the distribution of the burden of proof.Therefore,China needs to further improve the bankruptcy cooperative liquidation obligation system,implement the specific contents of the bankruptcy cooperative liquidation obligation when the bankruptcy law is revised,clarify the civil liability of enterprise managers for failing to perform the bankruptcy cooperative liquidation obligation,and establish a clear liability identification standard.In addition to the introduction and conclusion,this paper is divided into four chapters.The first chapter is an overview of the bankruptcy liquidation obligation system,which makes it clear that this obligation specifically refers to the legal obligation of enterprise managers to cooperate with the administrator in the bankruptcy liquidation procedure in accordance with the provisions of Article 15 of the bankruptcy law.However,the bankruptcy law does not specify the civil liability of enterprise managers for failing to perform the obligation,and only stipulates the civil liability through documents of the nature of judicial interpretation.Therefore,in practice,it is difficult to identify the causal relationship between tort and damage results when investigating the civil liability of enterprise managers for failing to perform the obligation of bankruptcy cooperation and liquidation.The second chapter is a juris prudential analysis of the nature of civil liability borne by enterprise managers when they do not perform the obligation of bankruptcy and liquidation.The author supports that the theoretical basis should be the principle of tort liability.Therefore,from the illegal acts,damage facts,causality and subjective faults of enterprise managers,this paper analyzes the compensation liability and scope of liability they should bear.The third chapter analyzes the judgment of determining the civil liability standard of enterprise managers who do not perform the obligation of bankruptcy cooperation and liquidation in judicial practice.In practice,there are errors in investigating the compensation liability of enterprise managers according to the relevant provisions of the company law.At the same time,the scope of the responsibility subject is not unified,and there are obvious differences in the scope of the compensation liability of enterprise managers.And based on the different understanding of the bankruptcy and liquidation obligations of different courts,there are obvious differences in the distribution of the burden of proof.In the fourth chapter,aiming at the above problems,the author puts forward that the civil liability for the failure of enterprise managers to perform the obligation of cooperating with liquidation is the liability for tort damage compensation,the basis of its obligation and liability should be the bankruptcy law,and the scope of its obligation subject needs the dual identification of procedure and substance.In the distribution of the burden of proof,the manager only needs to prove that the enterprise managers have the obligation of bankruptcy cooperation and liquidation and that the bankrupt enterprise is in the fact that it cannot be liquidated,while the enterprise managers need to prove that they have fulfilled the cooperation obligation or that their inaction has nothing to do with the fact that the bankrupt enterprise cannot be liquidated,otherwise they should bear the liability for damages.