Abstract

 

Since the2007Years6Month1Date, our new implementation of the "enterprise bankruptcy law" the introduction of a new foreign bankruptcy administrator system, overcomes the defects of the bankruptcy liquidation group has become more and more prominent, this is the legislative history a leap progress.At the same time, as with the new "enterprise bankruptcy law" supporting "the Supreme People's Court on the trial of enterprise bankruptcy cases specified management regulations", "the Supreme People's Court on the trial of enterprise bankruptcy cases to determine the remuneration regulations" also simultaneously. Since then, the firm as the main body of the bankruptcy administrator identity can be identified in the law, the law firms, both opportunities and challenges. The law firm, had the honor to the Yunnan Provincial Higher People's court in Yunnan province first album name administration in the year, and in this year2AprilXXCounty People's court appointedXXBankruptcy Trustee Limited liability company, is currently in the process of carrying out the related work. The author as the legal services for the project, the team of lawyers strictly fulfill the bankruptcy trustee duties in accordance with the law at the same time, also to the lawyers in the legal risk, and how to effectively prevent the thinking and summing up, we take advantage of this paper as the carrier "cast a brick to attract jade", in order to cause between peers exchange and discussion, to achieve "to complement each other, learn from each other to promote".

Key word.The bankruptcy administrator Legal risk To guard against

Introduction.The new "enterprise bankruptcy law" to establish a system of bankruptcy administrator, has opened up new areas of legal services for the firms, but also the professional level of service and quality of the law firm put forward higher requirements. How to provide service at the same time, constantly sum up the legal risk and prevention, is placed in a law firm in particular is a realistic subject in front of bankruptcy management list in the law firm. As is in bankruptcy administrator identityXXLimited liability company to provide legal services lawyers, we feel more pressure and confusion, progress with the project service, I would like to make the following thinking and summing up, to explore and peer exchanges, learn from each other to promote.

 

 

 

One, overview of the bankruptcy trustee system

The new "enterprise bankruptcy law" a new introduction of international insolvency administrator of the system, and a separate provisions of the bankruptcy administrator qualifications, duties, responsibilities, the bankruptcy trustee system in the legislative status is more important. The bankruptcy trustee refers to the acceptance of bankruptcy cases is designated by the people's court, to take over the debtor enterprise under the supervision of court and the relevant bodies and the specialized agencies responsible for the investigation, management, disposition of the debtor's property, decided the internal management, daily expenses, represent the debtor in litigation, arbitration, proposal to convene the creditors' meeting and other affairs.[1]

The bankruptcy administrator can be traced back to the ancient Rome empire. The ancient Rome Empire created property escrow system, when the debtor is unable to repay the debt, the more than two have the name of the implementation of the creditors, the debtor himself or an intention, willing to give all of the property for the creditor distribution. The judge ordered the seizure of all property of the debtor, the entrusted assets management all sold to the price of gold fair allocation to each creditor.[2]

The bankruptcy administrator system is the most mature of bankruptcy law in western developed country, a system is also very important, but the name is different. Anglo American law is generally referred to as "bankruptcy trustee", continental law generally referred to as the "trustee", the Japanese rule called "bankruptcy trustee", China's Taiwan region called "the bankruptcy administrator". Our old bankruptcy law called "bankruptcy liquidation group", the "enterprise bankruptcy law" by the "trustee" replaced "the bankruptcy liquidation group". The bankruptcy trustee in bankruptcy liquidation, bankruptcy reorganization and bankruptcy settlement, bankruptcy procedures, with a variety of functions. Compared with the liquidation group, covering a wider range, more content.

Trustee in bankruptcy system of our country in the new "enterprise bankruptcy law" new introduced abroad, overcome the disadvantage that the bankruptcy liquidation group highlights day by day. Compared with the old method of the bankruptcy liquidation group, the new law to make the following modifications: first, a clear legal status. The new bankruptcy law adopted the theory that reasonable, legal status of the management of people is a relatively neutral legal subjects, multi stakeholder. Secondly, space effect of internationalization, which applied to the debtor assets abroad. The bankruptcy proceedings begin at home, by the people's court shall take effect on the property of the debtor, in foreign countries. Expansion of the scope of validity of new bankruptcy law space makes the management of people have a greater responsibility than the liquidation group, has the internationalization color. Third, clearly stipulates the bankruptcy administrator selection conditions, legal liability issues are clearly defined.

Analysis of the legal responsibility of the two, the bankruptcy administrator

We're going to explore the legal risk prevention of the bankruptcy administrator, the final purpose is to avoid the legal liability, in other words, only a correct understanding of the insolvency administrator in the work of legal liability may assume in the process, to achieve "have a definite object in view", and the existing provisions theory combined with legal liability, the analysis to the law risk, and put forward feasible preventive measures.

(A)The theoretical basis of legal responsibility of bankruptcy trustee

2004United Nations Commission on International Trade Law "bankruptcy law" the draft legislative guide409Section pointed out: in addition to the specific duties and functions, the bankruptcy law bankruptcy provisions also often represent some general obligations. The so-called obligations, is the basic requirement of the bankruptcy law in performing their duties to the trustee in bankruptcy, is also the trustee violates the basic duties shall bear the legal responsibility of the. Provisions in the bankruptcy law, these obligations include: the bankruptcy trustee or fiduciary duty, the attention of the bankruptcy trustee obligation, accept the supervision of the bankruptcy administrator to provide guarantee obligations. Among them, the bankruptcy administrator's attention and trust obligations should bear the legal responsibility is the most important foundation.

Our theory is generally believed that the bankruptcy trustee should bear the duty of good management, the author thinks, in our country should establish the bankruptcy administrator"Trustee"Legal status, the basic obligations of the bankruptcy administrator should also be in accordance with the provisions on the duty of trustee of the trust law. China's new "enterprise bankruptcy law" article27The provisions:"The administrator shall diligently, faithfully perform their duties". The law of the130At the same time the provisions of:"The administrator has not according to the provisions of this law due diligence, faithfully perform their duties, peopleCivil lawCollege can impose a fine according to law; to the creditors, the debtor or the third person causes damage, it shall bear liability for compensation."[3]

Article27A bankruptcy administrator general obligations, the bankruptcy law of China from the Anglo American law system countries bankruptcy trustee theory, combined with the relevant provisions of China's "trust law", the trustee in bankruptcy as bankruptcy property"Trustee"From the position, safeguard the interests of the creditors (the beneficiary) the maximum point of view, the bankruptcy property management to do diligent and faithful obligation. According to the requirements of the trustee assiduous faithful duty, bankruptcy administrator shall not be forgetful of one's duties, the authority and status, related transaction, seek improper benefits for themselves or others. If there is any violation shall bear legal responsibility.

(Two) the specific content of the legal responsibility of bankruptcy administrator

The bankruptcy administrator's legal liability, is refers to the legal responsibility of bankruptcy trustee should take responsibility for illegal or improper behavior. The legal liability of the bankruptcy administrator, civil law countries generally in the bankruptcy law made clear, including civil liability, criminal liability and compulsory measures, disciplinary and administrative penalties. America bankruptcy law liability of bankruptcy trustee does not make clear, however, that most of the bankruptcy court bankruptcy trustee should bear personal liability.1997Years American Bankruptcy Law Review Committee is adopted for the gross negligence standard, that the trustee in bankruptcy (reorganization procedure except) only in gross negligence to assume responsibility, gross negligence refers to"The bankruptcy trustee is fiduciary blithely indifferent or deliberately ignored". At the same time, American code section18Article "crimes and criminal procedure" in the ninth chapter, the provision of the bankruptcy administrator of crime. The British "bankruptcy law" article304Article"The responsibility of trustee"Provisions of the bankruptcy trustee of negligence or breach of trust or other obligations, shall apply to the court to pay that amount of compensation justice. In addition, the "bankruptcy law" also stipulates the criminal responsibility of bankruptcy trustee violates the duty and obligation behavior.

    China's "enterprise bankruptcy law" can be said to be in abroad was established on the basis of the relevant provisions of the bankruptcy administrator in our country legal system. Responsibility includes civil responsibility, criminal responsibility, as well as the court compulsory measures. The eleventh chapter"Legal responsibility"In section130Clearly stipulates: the administrator has not according to the provisions of this law due diligence, faithfully perform their duties, the people's court may impose a fine according to law; to creditors, the debtor or the third person causes damage, it shall bear liability for compensation. Article131Regulation: violation of the provisions of this law, which constitutes a crime, shall be investigated for criminal responsibility according to law. However, the elements and the specific content to bear legal responsibility, there is a need to further improve.

The legal risk prevention three, the bankruptcy administrator

(a) analysis of legal risk and the causes of bankruptcy administrator

From the above analysis we can see, law firms as the bankruptcy administrator has slightly carelessly, will face huge legal risks: in addition to may have to bear the civil liability and criminal punishment liability, but also facing the court's judicial compulsory measures. Especially in the new "enterprise bankruptcy law" stipulates the bankruptcy trustee liability principle, and the duty of care and duty without specific criteria, and no provisions in the civil liability of bankruptcy trustee exemption from liability, liability of the debtor or creditor's rights advocate, once the civil compensation, the people's court receivership who should bear the liability of compensation and responsibility size of arbitrariness is increasing, this one; second, "enterprise bankruptcy law" does not require a specific standard of the people's court may fine, which in practice, also opened convenient ways to the people's Court of subjective. Therefore, due to the laws of their own shortcomings, greatly increased the risk of law firms as the bankruptcy administrator.

(two) the bankruptcy trustee legal risk prevention and realistic necessity and measures

The Supreme People's court in the "on the trial of enterprise bankruptcy cases to determine the remuneration regulations", although the provisions of the civil procedure agent to pay slightly higher than the bankruptcy manager compensation standards, but it is a long complicated bankruptcy cases and the time span decision based on. And in the part of bankruptcy cases, the final settlement of the total value of properties are small, and even no for liquidation of the property. This leads to a law firm as a trustee in bankruptcy is facing the huge legal risks, but on the other hand, without much revenue, some even have no income, The loss outweighs the gain., rights and obligations of the serious asymmetry. However, and not the law firm is not to undertake the bankruptcy trustee business, so how to guard against the risk has become the key question of law firms as the bankruptcy administrator. The author believes that from the following aspects: consider the legal risk prevention or dissolve the firm as the bankruptcy administrator.

1, change idea, complete the transformation of the role of

The legislation of our country, the lawyer as a consultant is a staff character role, engage in litigation is the role of agents. The framework of the two roles are not out to others planning, because the final decision is the customer, not the lawyer himself. And in accordance with the provisions of the bankruptcy trustee duties of the new "enterprise bankruptcy law", the trustee in bankruptcy is the protagonist in the bankruptcy procedure, the bankruptcy administrator decide matters to account for the majority of the. Therefore, as a lawyer and former administrator role is very different, to herself as a bankrupt enterprises to make decisions, not the people but to make their own decisions.

　　2The assignment of counsel, strictly, set up a team of diligence is the base and premise to reduce or avoid legal risks

Law firm as a trustee in bankruptcy, concrete contractors not law firm lawyers, but individual. Because of the complexity of bankruptcy cases, the contractor for the lawyer's practice level, professional knowledge, occupation quality and character requirements more strict. The theory and practice of the lawyers should not only be very familiar with the bankruptcy law, also should master and apply other related civil and commercial laws, regulations and policies. At the same time, "bankruptcy administrator of the enterprise bankruptcy law" the legal responsibility also requires lawyers must have to dispose of property, investigation, making the property of the debtor status report should have the financial knowledge and experience in the market. In addition, the bankruptcy trustee statutory obligations and diligent, loyal also asked the lawyers must have good occupation accomplishment and conduct. And above all, while the court in the establishment of bankruptcy management list has to enter the roster of the law firm is carried out strict examination, screening, but the lawyer business level, professional ability, good professional ethics and occupation most understand or law firms partners or colleagues. At the same time, we also know, legal risk, the main responsibility undertakes can only be law firm. Therefore, in order to reduce or avoid legal risks as the bankruptcy administrator, the law firm shall strictly in the determination of the lawyers, can not hold fluky psychology.

The characteristics of the bankruptcy case complexity, long cycle and so on, law firm was appointed trustee in bankruptcy, in the concept to resolutely eliminate the "wrong ideas, lawyer court led with legal procedures to carry out routine work"; must be in action to avoid the "lawyer alone" service mode, or a lawyer with on the1-2Practicing lawyer (or assistant) "team" service, should be taken to set up "real team" in the form of specific service work. The so-called "real team" is relative to the "team", its elements include a certain number of service personnel (the exact number depends on the specific circumstances of bankruptcy cases), staff should cover experienced partners (or a lawyer), lawyer, practice law, other auxiliary personnel, embodies the multi-level structure in order to ensure the rationality of complementary advantages, and the time and energy to provide service with the. The author team in undertakingXXBankruptcy cases limited liability company, combined with the case claims reporting period (three months), journey is distant, frequent business trip and other characteristics, is the thought form consisting of a partner, two full-time lawyers and a practising lawyer's team to provide specific services. By the end of the service of the current situation, the team set up is necessary, is reasonable, to ensure the effectiveness of service.

3, strictly according to the procedures, and consciously accept the supervision of the creditors' committee meeting, the people's courts and the creditors

The bankrupt property management is good, disposition of bankruptcy property of propriety, sometimes it is not a good conclusion in the entity. But whether the performance of the corresponding program, which became a judge is appropriate, the scales of justice. Therefore, lawyers as the trustee must be in strict accordance with the provisions of the new "enterprise bankruptcy law" program to operate. We conductXXBankruptcy cases limited liability company in the process of work, with particular emphasis on two pieces of work, one is to undertake the case from time when combined with the existing laws and regulations make a detailed time detailed work plan, ensure the legitimacy of the procedure; two is to keep the court and communication, timely according to the court's work process to adjust their work arrangement, cooperate actively, accept supervision. Of course, for from the creditor or other related human rights situation understanding and inquiry, but also timely feedback, and consciously accept supervision.

　　4Research on major issues, collective system is an important measure to reduce or avoid the legal risks

As a trustee in bankruptcy is a legal affairs in a new and very complex to the lawyer, the legal status of their statutory duties and in the process of bankruptcy enterprises irreplaceable determines the undertaker should be proficient in the relevant laws, regulations and familiar with financial law. However, from the present situation of China's lawyers, in line with the conditions of the law is not much, and even the lawyers in full compliance with the conditions, due to people's knowledge and ability, knowledge structure, business experience is limited, in the face of the complicated affairs will care for this and lose that, is the so-called "wise thousand worries, there must be one". In order to reduce and avoid unnecessary mistakes, whether relates to how to dispose of the property of the debtor, the debtor fails to perform the contract completion to major problems, the property of the debtor to fulfill the creditors in the distribution decision, the lawyers in the first service team to play a collective wisdom adequately, jointly study the think of a way to, in the conditions permit circumstances, should also report to the law firm, collective research, after repeated discussions, the formation of opinion, make relevant treatment measures more in line with the provisions of bankruptcy law and the people's court, the request of creditors.

5Non professionals employed in law, bankruptcy management can ensure that the bankruptcy business intelligence support

In practice, the bankruptcy trustee duties interdisciplinary, cross industry. Need a lawyer, also need accountants, economist and occupation managers. While each participating enterprise bankrupt individuals are basically "operation specializing in industry". Law firm as a trustee in bankruptcy, in addition to the legal, regulations are very familiar with, is not known for other professional. When necessary, law firms to hire other professionals to assist the bankruptcy procedure, to ensure the smooth and claims of creditors to achieve fair. In this regard, "enterprise bankruptcy law" article twenty-eighth, the Supreme People's court "on the trial of enterprise bankruptcy cases specified" remuneration of fourteenth are clearly defined.

We are undertakingXXA bankruptcy case of a limited liability company, were fully aware of the inter professional co-operation of the importance and necessity, therefore has not yet been carried out work, timely hired accounting firm a professional to help deal with the relevant financial, assets, and debt cleaning verification work. Now looking back, if not for their help, only our four service team, is unable to effectively carry out the work.

　　6In practice, the liability insurance is the last guarantee to resolve the legal risks

"Enterprise bankruptcy law" twenty-fourth article only provides "as managers, should participate in the professional liability insurance", the act does not require the law firms and other intermediary institutions as the trustee shall participate in professional liability insurance. But according to the bankruptcy law, general provisions of the bankruptcy administrator practice insurance system. With years of high-speed development of Chinese economy, bankruptcy of enterprises, scale is continually expanding, bankruptcy involved huge amount, compensation for the event, in addition to individual firms in developed areas, the general law firms have been unable to bear. Law firm may take the measures to reduce or avoid legal risks, but once generated, serious consequences could face bankruptcy law firms out of the market. Therefore, in order to avoid the extreme consequences, the law firm shall add the last safety gate, that is to participate in professional liability insurance, transfer part of the risk, the malpractice compensation is controlled in the range of acceptable. 

Four, the conclusion

Establishment of the bankruptcy trustee system, for the firms, it can open a new legal services market, but a comprehensive analysis of the theoretical basis and practical for the legal liability of trustee in bankruptcy cases in this paper bear, it is not difficult to see that, in this emerging market, the responsibility is bigger than the right, the risk is higher than income. We in the entire process as the bankruptcy administrator, in addition to the usual strengthen professional knowledge, abide by the occupation ethics and disciplinary norms, special attention to the legal service of legal consciousness, and combined with the specific services, constantly thinking, foresee the legal risks may occur and the legal responsibility to bear, to take timely and effective measures, advance to resolve, finally achieves in the legal framework, responsible, under the safety of as much as possible to provide quality and efficient legal services for clients.

Reference.

[1]Wang Feimin, Wang Xinxin,, "insolvency law", Renmin University of China press,2005No.1Version,73Page.

[2]Ann, Wu Gaosheng, editor in chief, "enterprise bankruptcy law", Law Press Chinese practical tutorial,2006No.1Version,26Page.

[3], "Xing Zengfeng, the bankruptcy trustee system of several problems".

[4]Chen Xiaofeng,, "bankruptcy liquidation risk management strategy", law press,2011Years6Vol.1Version.

[5]Pi Jianlong, bankruptcy liquidation, "lawyer", law press,2011Years2Vol.1Version.

      

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                                                             

Zhang Danjie.1978- ): male, Yunnan Jian Guang law firm partner. Graduated from Yunnan University School of law, research of economic management majors. The Yunnan Provincial Committee of legal branch members, members, criminal Business Research Committee of Lawyers Association of Yunnan province committee of Yunnan Lawyers Association of industry development and planning committee. Professional direction: Civil and commercial law, construction and real estate, criminal defense. Contact telephone number:138-8832-9115, mailbox:Zhangdanjielawyer@vip.163.com.