On the bankruptcy reorganization of oversight mechanisms in the improvement of administrator

Summary: Manager is a vital pArticipant in bankruptcy reorganization proceedings, related to the bankruptcy reorganization proceedings success or failure. This Article discusses the supervision of the bankruptcy reorganization managers need, then, combined with China's current bankruptcy reorganization managers Problems monitoring mechanism proposed bankruptcy reorganization managers of the monitoring mechanism of the improvement proposals.

Keywords: bankruptcy reorganization, the manager, supervision

Insolvency administrator in bankruptcy to assume a management or supervisory role, but the manager can not be completely free to exercise their powers must be subject to supervision, improve the bankruptcy and reorganization in the manager's monitoring mechanism, has a very important practical significance.

First, the bankruptcy and reorganization in the manager's role and the need for supervision
In the bankruptcy reorganization in the world have set up the system administrator, the current bankruptcy Law provides for the debtor to manage their own though not clear, however, whether in human-centered management, the manager as a replacement for the debtor company's restructuring mode, or self-management of the debtor, the manager supervised mode, the manager both in bankruptcy and reorganization plays an important role.

Insolvency administrator in the bankruptcy and reorganization is a major institution, play an important role in reorganization proceedings. Enterprise can not perform the debt, insolvency, conflict of interests of all pArties, corporate restructuring and bankruptcy allowed the manager to take over the debtor's property designated when the debtor's property by the manager to take full control, the insolvency administrator to become the focus of all stakeholders, their behavior not only to creditors, debtors and shareholders, but also to the interested third pArty; the debtor has been granted a self-management, manager mainly for supervision, he is the subject of rights of the pArties to "advocate" to ensure that the interests of creditors and other interested parties will not be compromised. insolvency administrator whether it is appropriate to exercise the powers, responsibilities are effectively fulfilled, whether related to the bankruptcy reorganization proceedings achieve success only to realize effective supervision of the manager in order to enable the successful completion of the bankruptcy reorganization process, to ensure maximum benefit of creditors.

Second, bankruptcy and restructuring problems in oversight mechanisms manager
(A monitoring body is imperfect, do not form a monitoring system for managers
China's bankruptcy Law only provides for a meeting of creditors and the creditor committee oversight of the main position, in practice, a meeting of creditors is very much based organization, and called itself the exercise of powers of the lack of a workable, making it difficult for managers to exercise effective oversight Creditor Committee, while the daily body, but because of the meetings of creditors and creditors' ill-defined powers of the Board, likely to cause confusion, to form a single large court supervision, and, closely related with the bankruptcy reorganization proceedings and other participants of the bankruptcy reorganization the manager is no oversight. our country has no system of bankruptcy reorganization managers of the monitoring system.

(Two internal supervision and monitoring measures on the provisions are too broad
The so-called internal oversight, is to set the duty of good administrator, and professional training to achieve their sense of moral self-discipline and supervision. China's bankruptcy Law only in Article 27 provides that: "managers should diligently and faithfully perform their duties." This is only a general requirement for the insolvency administrator is to make this obligation can not make objective judgments. bankruptcy reorganization managers is difficult to define their duties and responsibilities of the boundaries and scope, their behavior detrimental to their self-regulation and inspection Internal Oversight difficult to implement. In addition, the insolvency provisions of the supervisory measures is too broad and abstract, in practice the lack of maneuverability.

(Three managers responsible for monitoring deficiencies
From the Manager of China's bankruptcy Law on the liability provisions can be seen, the insolvency administrator be liable for its failure to fulfill the premise that Article 27 of the generalizations diligence duty of loyalty. These provisions are too principles, on the specific circumstances of responsibility, accountability and the accountability of the main ways are not clearly defined. and only the civil and criminal liability, the administrator of the bankruptcy reorganization and other acts of negligence occurs when there is no requirement of administrative accountability in the bankruptcy practice , the duty of loyalty is difficult to prove due diligence, criminal liability is only up to a certain extent appear, nor the provisions of administrative responsibility.

Third, the bankruptcy and reorganization in the perfect monitoring mechanism proposed administrator
Administrator in bankruptcy and reorganization of China's oversight mechanisms in legislation and practice, there are still many problems, should further improve the following aspects:
(I realize the diversification of supervision, the manager of the formation of multi-level monitoring system
In the bankruptcy reorganization proceedings, participants are manifold. For the supervision of bankruptcy reorganization managers not only in business, including competency, compensation and other aspects related to the interests of all parties involved. The Law only requires one supervise a small number of participants, is unfair and unscientific. court business volume, in practice difficult to form effective supervision, oversight body set up a special administrator can control the selection of managers, special places for special the whole process of bankruptcy and restructuring practice office manager to supervise and guide the Legislative bankruptcy reorganization should include oversight of the main range of other stakeholders In addition to the main functions of supervision of the division, a clear oversight authority of the oversight body to the formation of multi-level monitoring system of bankruptcy reorganization managers, so that the supervision of the bankruptcy reorganization managers without vacuum sections. Links to free download http://www.hi138.com
(B sound external monitoring, while the combination of internal and external oversight
External oversight, the courts and other oversight body for the supervision of the insolvency administrator behavior. Clear external oversight of the main insolvency, bankruptcy and restructuring should also be detailed responsibilities of managers, so that supervisors can monitor specific issues, such as compensation standards for managers to make specific provisions, while the external monitor in detail the scope of the supervision of the main requirements to enable the Authority to maintain the effectiveness and orderly addition, for internal monitoring should not only provides for the principle, there should be good obligations of the ruler managers, industry associations through a variety of quality indicators for rating the business manager, the manager of internal supervision and monitoring of internal and external oversight combined.

(C) improve the responsibility to monitor
Manager's responsibility to improve the supervision of bankruptcy and restructuring, bankruptcy reorganization managers is an important part of monitoring mechanisms for the insolvency administrator of the civil liability provisions should be applied according to the different nature of the different principles, such as tort liability and breach of contract should be distinguished applicable to civil liability when insolvency occurs to facilitate the occupation of office, corruption and other criminal behavior, criminal legislation should clearly bear the unit or the insolvency administrator is personally liable for the same time, clearly defined administrative responsibility of the insolvency administrator, through the violation of bankruptcy manager duties and powers of the insolvency act of abuse of administrative penalties to protect the bankruptcy and restructuring the system administrator of the seriousness of the addition, if the insolvency administrator to establish self-association, the law can give it a certain exercise the right of administrative punishment, thereby ensure the supervision of the insolvency administrator in a timely manner, conducive to more clearly define the administrator of the system of bankruptcy reorganization, bankruptcy and reorganization conducive to the goals.

References:
[1] Wang Xin new insolvency law [M]. China Politics and Law University Press.

[2] Feng Kai. The legal system of supervision of the manager - to bankruptcy reorganization as the center [M] .2008.

[3] Wang Yao. On the Improvement of the insolvency administrator oversight mechanisms [M] .2009.

[4] Jiang Xin Ye. Managers in bankruptcy reorganization and its role in the regulation of sound [J]. Application of the law, 2009, (10).

Links to free download http://www.hi138.com