중국 기업파산절차에서의 관리인 선임과 감독

Abstract

China established the PRC Law of the Enterprise Bankrupcy (LEB) in June 1, 2007 and introduced a bankruptcy administrator system in its bankruptcy process. This paper will discuss about two major aspects of the system: first, the nomination and exemption process of bankruptcy administrator; secondly, the supervisory activity due for administrator’s responsibilities in bankruptcy process. As soon as bankruptcy petition is filed at the People’s bankruptcy court, the court appoints an administrator from the roster of the existing administrators. In general, an intermediary organization including law firms, certified public accountants (CPA), and bankruptcy liquidation offices is assigned as a bankruptcy administrator. A liquidation agency whose member consists of personnel of the relevant government and agency or an individual attorney/CPA can also be appointed as the bankruptcy administrator. The selection of the bankruptcy administrator is finalized by the evaluation committee of the court. In order to appoint an attorney, the court uses three alternatives such as arbitrary, competition, and recommendation methods. Should the court recognize the nominated administrator be inappropriate to execute the responsibilities of the bankruptcy administrator, the court may replace the position with its own authority or with the request from the creditors’ meeting. The payment of the administrator is determined by the certain ratio to the size of the bankruptcy. If an administrator is dispatched from government agencies, his/her payment is not paid separately. The supervisory activity over the administrator is executed mainly by the court. The creditor’s meeting or the creditor’s committee also scrutinize the performance of supervisory works in reality. If the administrator fails to comply with due diligence and perform faithfully his/her duties, he/she will not be exempted from damage compensation and fine for default by himself/herself. Of course, the criminal liability stemming from the outcomes of the failure shall be levied upon the administrators. To date, even though the legal due process for the bankruptcy liquidation in China is being rapidly developed and hence, try hard to meet international legal standard, it would take a longer time to have more complete credibility and transparency as well in global economy. Especially, for instance, yet the Chinese bankruptcy system appoints liquidation agency. Additionally, the bankruptcy liquidation officer itself could become the bankruptcy administrator. This paper which is primarily focused on the role of the Chinese bankruptcy administrator provides both practical and comprehensive understanding of the China's bankruptcy legal system. Wherefore, it provides a more complete legal understanding to avoid any unnecessary side effects stemming from failure of understanding both operational and withdrawal legal system in China.