The universal application crisis of ex officio“execution to bankruptcy” and its procedural response
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D925.1;D922.291.92

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    Abstract:

    Under the party application doctrine model, the main obstacle to the poor operation of "execution to bankruptcy" in China does not lie in the distribution of proceeds of execution, but the limited protection of interests has resulted in insufficient motivation for the parties to agree, coupled with the lack of legislation on ex officio bankruptcy, made "execution to bankruptcy" inefficient finally. The difficulties of execution withdrawal and bankruptcy launch have inspired the innovations of "execution to bankruptcy" in China, Article 82 of the Civil Execution Law (Draft) in 2022 stipulates the launch mode, which adjusts the parties’ consent to the compulsory starting with terminating the execution procedure, and determines that the bankruptcy court should accept it in principle, which adds an ex officio provision, thus establishing Chinese bankruptcy launch model that "party application doctrine mainly, ex officio doctrine complementally". A comparative examination of extraterritorial countries and regions shows that while the party application doctrine is the dominant approach, the ex officio doctrine has not been completely abandoned. The reason is that the state should consider public interests in execution and bankruptcy proceedings, and that bankruptcy interests are properly part of them. The ex officio doctrine requires that, even if the parties object, judge can end the proceedings which does not violate the procedural rules, as long as there is no need for further proceedings. In terms of money execution, the centralized execution model in China takes the debtor’s entire responsible property as the subject of execution, laying the foundation of compulsory "execution to bankruptcy" and the convergence of the two laws. The essence of "execution to bankruptcy" is the state’s intervention plan to purify the market and realize the rapid clearance of specific subjects. As a result, the development direction of the "execution to bankruptcy" is to declare ex officio bankruptcy and apply summary proceedings to quickly liquidate the debtor. State intervention in execution and bankruptcy is appropriate for reasons of public interests. However, the unrestricted universal application of compulsory "execution to bankruptcy" will, to a certain extent, infringe both substantive and procedural rights of the parties, and over-consume the judicial resources, thus depriving it of its legitimacy. In response, it is necessary to clarify the relationship between civil execution law and bankruptcy law, and to realize their functional boundary and institutional coordination, while providing sufficient procedural safeguards for the parties. In other words, the dialogue in execution should be used to moderate the compulsory effect of ex officio doctrine, the principle of formalisation should be used to eliminate the solvency of the debtor, including property, credit and labour, and the review of bankruptcy interests should be used to exclude unnecessary "execution to bankruptcy", thus limiting the scope of compulsory application. To provide institutional provision and effective safeguard for creditors’ rights realization and debtors’ legal interests protection.

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朱福勇,仇金.“执转破”启动职权主义的普适危机与程序应对[J].重庆大学学报社会科学版,2023,(2):258~270

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  • Online: May 08,2023
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