Elimination of obstacles and improvement of the system for the administrator to
The administrator's taking over of the debtor's information is a statutory duty determined by the enterprise bankruptcy law, the first content of the administrator's performance of duties, and a necessary condition for safeguarding the interests of creditors. It is vital to the smooth progress of the bankruptcy proceedings. However, in judicial practice, there are often debtors and their personnel who, for various subjective and objective reasons, do not cooperate with the administrator to take over, resulting in the "deadlock" of the bankruptcy case at the "beginning". The main reason is the absence of the obstacle elimination mechanism for the administrator to take over.
In Article 118 of the minutes of the national civil and commercial trial meeting of the people's court, the Supreme People's court adopts the method of analogical reasoning, and refers to the provisions on obstruction of justice in civil proceedings, imposes judicial fines, detention and criminal liabilities on the debtor's personnel who cooperate with the liquidation obligations, and restricts the legal representative and actual controller of the debtor from leaving the country. On April 25, 2020, the Supreme People's court officially issued the opinions on promoting the efficient trial of bankruptcy cases according to law, Item 8 of Article 2 stipulates that: "The administrator shall take over the debtor's property, seals, account books, documents and other materials in a timely manner. If the debtor refuses to hand over, the people's court may, upon the application of the administrator or according to its authority, impose a fine on the person directly responsible, and may make a ruling on the content and time limit that the debtor should hand over. If the debtor fails to perform the obligations determined in the ruling, the people's court may, in accordance with the relevant provisions of the enforcement procedure of the civil procedure law Compulsory delivery and other necessary measures shall be enforced. " It can be seen that the problem of the administrator's taking over the debtor's data is not a case problem, and has entered the vision of the highest judicial institution in China. The relevant solutions are also being put forward gradually, and the corresponding theoretical research should also be actively followed up.
Compared with creditor's rights review, creditor's meeting, draft reorganization plan, and bankruptcy property distribution plan, it seems to be a "small matter" how to build a positive system for the administrator to take over the debtor's information and remove the obstacles for the administrator to perform his duties, but it is a "big problem" facing the improvement of the bankruptcy legal system. This paper first analyzes the problems existing in the legal provisions and the obstacles in the judicial practice of the administrator's taking over the debtor's data, and demonstrates the concept that the debtor's data and the "information" contained therein are the basis of the management work. On this basis, it provides reference suggestions for the administrator to remove the obstacles in taking over the debtor's data and improve the system, so as to be beneficial to the improvement of the system and the solution of related problems.
1、 Questions raised
In the bankruptcy procedure, the debtor's information is the basis for the administrator to carry out the management work. From the perspective of information theory, the essence of the management process is the information processing process. China's laws also follow this law. Among the duties of the administrator specified in Article 25 of the enterprise bankruptcy law, item (I) determines that the administrator "takes over the debtor's property, seals, account books, documents and other materials". The duties of the administrator basically revolve around the path of "obtaining information - analyzing information - processing information - outputting information". In the bankruptcy proceedings, the game between creditors, investors and other stakeholders is, in a certain sense, manifested as the capture of the debtor's information, so as to obtain more data support for their own interests. If the administrator cannot successfully take over the debtor's information, it will not be able to systematically grasp the debtor's information, resulting in asymmetric information of all parties in the bankruptcy proceedings. Information is the basis of creditors' decision-making and the premise of completing investment transactions. The more sufficient information, the lower the transaction cost and the higher the transaction efficiency. On the contrary, the transaction cost rises and the transaction efficiency decreases. Information is the basis for the operation of the "marketization" bankruptcy procedure. The obstacle encountered by the receiver in taking over the debtor's information is the erosion of this basis, and corresponding systems must be established to protect it.
The influence of system on human choice is realized by influencing the availability of information and resources, shaping the power, and establishing the basic rules of social transactions. Institutional innovation contributes to development by providing more efficient organization of economic activities, and these approaches usually lead to the adjustment of economic fundamentals [[US] v Ostrom et al.: "institutional analysis and Reflection on development", translated by Wang Cheng et al., commercial press, 1992 edition, page 2. In the market-oriented and legal bankruptcy proceedings, the receiver system of the administrator is to enable the administrator to obtain the debtor's information resources according to law, thereby providing the information basis for the administrator to perform his duties and exercise the management rights. The legal scope of the administrator's performance of duties is determined by the enterprise bankruptcy law. The actual scope of the administrator's performance of duties is determined by information, which is a necessary condition for management. Information is the basis for individual behavior to be supervised [Zhang Weiying: property rights, government and reputation, life, reading and new knowledge Sanlian bookstore, 2001 edition, page 6.], The obstacles to the administrator's taking over the debtor's information have led to the administrator's inability to exercise the right to recover the debtor's property under Article 34 of the enterprise bankruptcy law based on information asymmetry, the legitimate rights and interests of creditors and debtors have been damaged, and the legislative purpose of the bankruptcy law has been frustrated.
The bankruptcy system, especially the reorganization system, has been closely connected with the industry since its inception, but is relatively distant from the traditional law itself. "In fact, the history of company reorganization is a failure history of railway companies in the 19th century" [[US] David A. skill, Jr.: the world of Debt: the history of American bankruptcy law, translated by Zhao Binghao, China Legal Publishing House, P. 56]. The bankruptcy procedure solves the property distribution problem of "the debtor is hungry" in an orderly manner, which is closely related to the business management, merger and reorganization of enterprises. The traditional bankruptcy legal system follows the conceptual system of the civil and commercial law, paying attention to the concepts in the legal field such as creditor's rights and property rights, such as priority, cancellation right, right of recovery, joint and several creditor's rights, contract dissolution, etc. as for the "management" of the debtor, the corresponding legal conceptual framework and legal system have not been evolved yet. The bankruptcy law theory as a whole attaches importance to the "hardware" of the debtor's legal property and debt Ignoring the suspicion of "software" in the process of enterprise management, which is a multidisciplinary comprehensive field spanning law, management, accounting, economics and informatics. The theory of bankruptcy law in China prefers to interpret the bankruptcy procedure from the perspective of general execution procedure, and fails to fully learn from the knowledge accumulation of other disciplines and industries. The bankruptcy procedure is the last line of defense for the protection of creditors' interests. In the bankruptcy procedure, the silence and inaction of the debtor's directly responsible personnel refused to cooperate with the administrator's taking over, but the administrator could not invoke the "default judgment" system in the civil procedure to solve the problem. This in turn constitutes the remarkable characteristics of the bankruptcy procedure different from the general procedure. Therefore, it is necessary to re-examine the problem of removing the obstacles of the administrator's taking over in the bankruptcy procedure. Taking over the debtor's information is the starting point of the administrator's performance of duties and the premise of the administrator's other performance of duties. It is not only related to procedural justice, but also related to substantive justice.
2、 Analysis of the reasons for the obstacles of the administrator taking over the debtor's information
The obstacles of the administrator taking over the debtor's information are difficult to predict by legislators in the system design, but they are often encountered in the practice of bankruptcy law. The existence of such obstacles is caused by the objective factors of the development stage of the bankruptcy law culture, the competent factors of the interests of the interested parties themselves, the lack of coordination and tension between various systems at different development stages, and the cross influence of various subjective and objective factors. This is an attempt to analyze.
（1） The actual controller does not cooperate based on interest expectation
The conventional competition for corporate control occurs between the new and old shareholders in the equity M & a market, while the competition for corporate control in the bankruptcy proceedings occurs between the original actual controller and the manager. The former is a competition in the company law, and there are various measures based on acquisition and anti acquisition; The latter is a competition in the bankruptcy law, and the interest demands are very different from the former. In the bankruptcy proceedings, especially when the debtor enters the bankruptcy proceedings passively, the manager will actually exercise part of the functions and powers of the board of directors and the management. At this time, the actual controller of the debtor will face the loss of the control right of the enterprise. On the one hand, the enterprise entering the bankruptcy proceedings will be taken over by the manager; on the other hand, other related enterprises and related creditor's rights will also face the risks of merger bankruptcy and liquidation of inferior ordinary creditor's rights.
Since the enterprise is in trouble, the actual controller has generally taken positive self-help measures. When the enterprise enters the bankruptcy procedure and the control is transferred to the manager, the phased results achieved by these commercial self-help measures are forced to be cleared. The commercial logic of the debtor's self-help and the legal logic after the manager takes over are two different language systems, and the transaction structure design of the two is completely different, In particular, the substantive rights and interests of the original actual controller will be adjusted by the "principle of absolute priority", and its substantive rights and interests are in a inferior position in law.
In order to gain the initiative, in practice, the debtor and its staff often ignore, deliberately delay or hide important information and do not cooperate with the manager to take over. Through the isolation of the debtor's information and the use of the statutory time limit of the enterprise bankruptcy law, the manager's performance of duties is "impossible to start", so that the manager can retreat from difficulties, Some even take advantage of interests to entice and incite creditors and employees to petition and appeal in many ways to interfere with the performance of the manager's duties. They hold the mentality of "a large number of people, a large number of people" and "the law is not responsible for many people", and intend to let the debtor withdraw from the bankruptcy procedure and return to the control of the original shareholders.
（2） Hiding illegal acts in enterprise operation
Most enterprises in China have nonstandard behaviors in the process of operation. There may be many illegal behaviors in the aspects of original accumulation, registered capital, financing and lending, fund management, interest transmission, fraudulent subsidies, illegal fund-raising, tax evasion, intellectual property rights, and confusion of personality. These behaviors may be re investigated and audited in the bankruptcy proceedings, and will be subject to legal evaluation and correction, For some debtors, especially those enterprises that grow up savagely, once all the problems are exposed to the sun, a series of chain reactions and even criminal legal liabilities will occur. For the sake of self-protection, the actual controller and the management of the debtor will hide important materials from the manager, deliberately set obstacles for the manager and the audit institution, delay and hide important materials, and lead to a management vacuum through information barriers, making it impossible for the manager to perform his duties.
（3） The scope of the debtor's "directly responsible person" is not clear
Article 127 of China's enterprise bankruptcy law stipulates that: "If the debtor, in violation of the provisions of this law, refuses to submit or submit to the people's court an untrue statement of the state of property, a detailed list of debts, a detailed list of creditor's rights, relevant financial and accounting reports, as well as the payment of employees' wages and social insurance premiums, the people's court may impose a fine on the person directly responsible according to law. If the debtor, in violation of the provisions of this law, refuses to hand over the property, seals, account books, documents and other materials to the administrator, or If the person who forges or destroys the evidence materials related to the property and makes the property status unknown, the people's court may impose a fine on the person who is directly responsible according to law. " The concept of "directly responsible person" is adopted in legislation, but the specific scope is not clear and the judicial interpretation is not clear. In general, in bankruptcy cases, most of the debtor's staff understand the "enterprise" rather than themselves as the subject of responsibility. Their attitude is negative, and the manager has to "coax" to work. Some still continue to accept only the instructions of the actual controller and the original superiors on the basis of salary arrears or other reasons, and turn the information that should belong to the "public goods" of all creditors into "private goods".
The reason for the non cooperation of the debtor's directly responsible personnel is roughly the same as that of the actual controller. Such personnel may be the "trusted ones" and "direct relatives" of the actual controller's hometown, classmates, drivers, relatives, special interest subjects, etc. some have no actual position in the enterprise and have no labor relationship with the enterprise. In addition, there are also improper reasons such as salary arrears, personal grievances, corporate politics, etc. for the non cooperation of the debtor's relevant directly responsible personnel, which also need to be further clearly included in the scope of legal regulation to directly implement the responsibility to the individual.
（4） Restriction of new labor relations
After the relevant personnel of the debtor's key positions leave the debtor's enterprise and confirm the labor relationship with the new employer, they will be subject to the management and restriction of the newly signed labor contract, which forms a direct conflict with their cooperation with the manager in handling the takeover. At this time, the personnel who have left the key positions of the debtor will be subject to the dual legal constraints of the labor relations of the new unit and the cooperation with the administrator in taking over the work in the bankruptcy proceedings. However, the enterprise bankruptcy law or the relevant labor contract legislation does not regulate this conflicting obligation, which adds obstacles to the administrator taking over the debtor's information. In the bankruptcy practice, it often happens that the debtor's key personnel refuse to cooperate with the administrator's takeover and investigation on the ground that they are busy with new work.
（5） Lack of coordination between government and social public functional institutions
1. The government administrative department cannot actively cooperate with the investigation and take over
The relevant registration departments of the government, such as real estate, social security, development and reform, market, taxation, customs, environmental protection, science and technology, and planning, cannot actively cooperate with the investigation conducted by the administrator to take over the debtor's information, such as the unpaid social security of employees that may be involved in the bankruptcy of labor-intensive enterprises; The bankruptcy of a real estate enterprise may involve the transfer contract of the state-owned construction land use right, the construction land planning license, the content change of the land planning license, the construction project planning license, the construction project construction license, the layered household list, the project plan, the construction drawing, the planning index table, the government approval, and the filing and advance notice registration of the real estate sales; There is also a need to retrieve the debtor's annual inspection information, tax declaration data, invoice application and various data retrieved based on E-government.
2. Social public functional institutions cannot actively cooperate with the investigation and take over
During the performance of duties, the administrator also needs to communicate with institutions with social and public functions, such as obtaining the debtor's account number (bank), obtaining the debtor's securities account (securities broker), issuing an announcement in the media (newspaper office) in the name of the debtor, obtaining water, electricity and other information, re engraving the debtor's seal (seal company), investigating the debtor's notarized creditor's rights documents (notary office), These institutions sometimes fail to cooperate with the administrator, which causes the administrator to apply to the court for an investigation order, which only increases the operating cost of the system and reduces the operating efficiency of the bankruptcy procedure.
3、 Removal of takeover obstacles: Centering on the information power of the manager
The administrator takes over the debtor's information, ultimately in order to fully grasp the debtor's property and debt information, so as to promote the market-oriented transaction and value maximization of the debtor's property, business and capital contribution in the bankruptcy liquidation or reorganization process, and realize the debtor's debt liquidation and the creditor's interests maximization. The transaction process of the market is an asymmetric game process of information. In this sense, the administrator's taking over of the debtor's information is the starting point of the debtor's "marketization" bankruptcy procedure. Information is one of the five key parts of market microstructure [the market microstructure is composed of five key parts: technology, rules, information, market participants and financial instruments. The main role of market organizers is to reasonably organize the above five parts to maximize their effectiveness. The market usually uses four indicators of liquidity, volatility, transaction cost and transparency to reflect market quality or market efficiency. See Li Ping, Zeng Yong and Tang xiaoi: overview of market microstructure theory , published in Journal of management science, No. 5, 2003], the key issue to improve the efficiency of the operation of the bankruptcy procedure lies in how the administrator can improve the sufficiency, accuracy and symmetry of information.
The market-oriented bankruptcy must rely on the guidance of information. The administrator edits the debtor's information into the legal language in the bankruptcy proceedings, that is, forms various reports, decisions, plans and drafts, and makes various legal acts such as cancellation, recovery, recovery, offset and investigation. It can be said that if there is no sufficient information, the performance of the administrator will be like a blind man feeling an elephant, which will seriously harm the interests of creditors and the efficiency of the bankruptcy proceedings.
（1） Power perspective of information
Information is the basic element of management system and the medium of organic connection. The process of management is the process of information acquisition, processing and decision-making using information [Yang Shanlin and Liu Yezheng: management Informatics, higher education press, 2003 edition, page 1]. Information is an economic and social resource with high gold content; One of the important purposes of power is to master certain information resources. Power is changing from "having abundant capital" to "having abundant information", and information becomes power, especially before information diffusion [[US] Joseph S. Knight: hard power and soft power, translated by men Honghua, Peking University Press, 2005 edition, P. 105]. The universality of information power covers almost all aspects of social life, connecting the elite with the masses, and combining the isolated and isolated experience fields of individuals with the external world, playing an important role in social integration [Wang Dongmei: Information Power: an important force in shaping social order, published in Tianjin Social Sciences, issue 4, 2010]. Information power can be divided into information claim right and information control right.
A normal operating enterprise is essentially composed of a series of contracts, and the contractual control right and the information control right together constitute the actual control right [Li Wenjing: Research on Accounting Conservatism based on the July process -- Another Interpretation from the perspective of information rights, Economic Science Press, 2008 edition, P. 130.], Before the debtor enters the bankruptcy proceedings, the debtor is established and continues to operate based on the contract, The actual controller and the investor have the right to request the distribution of the remaining property [the right to request the distribution of the remaining property refers to the property right of the shareholders to request the distribution of the remaining property after the company has entered the liquidation procedure and the company's debts have been paid off. Huang Bin: practical analysis of the right to request the distribution of the remaining property, published in "Law School of Peking University Magic School", website: http://lawyeredu.pkulaw.cn/index.php?m=content&c=index&a=show&catid=10&id=1142 , last visit on July 5, 2020. The provisions of the Supreme People's Court on Several Issues concerning the application of the company law of the people's Republic of China (III) clearly define the right of claim for distribution of residual property as the right of shareholders, Article 16: "if a shareholder fails to fulfill or fully fulfill his obligation of capital contribution or withdraws his capital contribution, the company makes corresponding reasonable restrictions on his rights of shareholders such as the right to claim for profit distribution, the right of preemption of new shares and the right to claim for distribution of residual property according to the articles of association or the resolution of the shareholders' meeting, and the people's court shall not support the request of such shareholder to determine that the restriction is invalid."] The right to obtain information and the right to control information of an enterprise is embodied in the right to know and the right to vote. After the debtor entered the bankruptcy procedure, the original control system of the debtor was disintegrated and reconstructed, and the administrator took over the control of the debtor's enterprise on behalf of all creditors. The administrator's taking over of the debtor's data is actually the administrator's right to obtain information and to obtain the debtor's actual control on behalf of the creditor.
（2） The obstacle of taking over will directly infringe on the interests of creditors
Coase's enterprise contract theory has strong explanatory power in both external operation and internal management of enterprises [[US] Ronald h. Coase et al.: "the nature of enterprises", translated by Yao Haixin et al., commercial press, 2010 edition, P. 37.], Some scholars have also carried out contract analysis on the bankruptcy reorganization system, holding that "the company in the reorganization is essentially a contract bundle composed of a series of enterprises" [Wang zuofe: Contract Analysis of the company reorganization system, China University of political science and Law Press, 2013 edition, p. 6]. According to the analysis of the contract theory, when an enterprise enters the bankruptcy procedure, the legal contract control right should be transferred to the manager and creditors. The provisions of Article 25 of the enterprise bankruptcy law on the duties of the manager and the provisions of other managers' rights fully reflect the undertaking of the rights of the shareholders' meeting and the board of directors under the non bankruptcy state of the enterprise. In the bankruptcy proceedings, the actual controller and the investor have legally lost the debtor's "contractual control right", but they can still exert great influence through the "information control right". In the absence of information, the administrator will not be able to truly perform the management duties.
In the bankruptcy proceedings, the creditor's rights are prior to the debtor's capital contributors to obtain repayment, the related party creditors who abuse the control right do not have the right of exclusion or priority to the debtor, and their creditor's rights are distributed in a second order to other ordinary creditors. All these management work related to the major interests of creditors rely on the professional judgment of the administrator as professionals (lawyers and accountants) on basic information. It can be seen that the existence of takeover obstacles such as refusing to cooperate with the manager's takeover and shielding information from the manager will directly infringe on the rights and interests of creditors.
（3） The construction of the Obstacle Elimination System of the manager's taking over
1. Confer quasi judicial power on some functions and powers of the administrator.
The private subject can exercise the functions and powers with the nature of public law. Distinguish between the nature of the subject and the nature of the authority, that is, although the manager is generally a market subject such as a law firm, part of the authority exercised by the manager can be characterized as quasi judicial power, and the private subject is given the authority to perform the public power factor based on the designation of the people's court and legal authorization. On the theory of "public institution theory", "private institution theory" and "trust theory" as the main body of the administrator [Xu Defeng: Theory of bankruptcy law, Peking University Press, 2015 edition, pp. 257-260], In terms of institutional structure, the "nature" of the manager can be avoided, and the "behavior" of the manager can be directly adjusted, that is, Article 25 of the enterprise bankruptcy law and other relevant responsibilities can be divided into public law behavior (i.e., quasi judicial behavior) and private law behavior. Among them, the functions and powers of taking over the debtor's information, investigating and managing the debtor's property, and investigating the creditor's rights of employees can be included in the quasi judicial behavior of the manager; The decision on the debtor's internal management affairs, the management of the debtor's property, the exercise of the right of cancellation, the right of recovery, the right of offset and other functions and powers may be included in the private law acts of the administrator. Some scholars believe that if the debtor is lazy or refuses to hand over the materials, "the administrator can directly request the court for compulsory execution according to the bankruptcy acceptance ruling". In terms of comparative law, Japan and Germany have corresponding legislation [Wang Xinxin: a course of bankruptcy court and cases, China Renmin University Press, 2010 edition, P. 83].
As a component of traditional commercial law, bankruptcy law belongs to the category of private law that regulates the rights and obligations between private subjects. The autonomy of private law is the iron law in the field of private law. With the changes of economic society and the evolution of legal concepts, the phenomenon of so-called "public law of private law" has emerged. The jurisprudential basis of the legalization of private law is based on the implementation of the dual distinction between private law and public law. On the one hand, it affirms and recognizes the restrictions and amendments of public law principles and public law obligations on private law principles and private law autonomy; On the other hand, through the extension and expansion of public law to the field of private law, the scope of application of public law has been expanded [Tian Xiqing: Rethinking the division of private law and public law -- from the perspective of public law of private law, published in Chaoyang law review, issue 1, 2014]. This is that the public law system reduces the burden of private law ethically [[German] Rolf keniper: Law and history -- on the formation and changes of the German civil code, translated by Zhu Yan, Law Press, 2003 edition, P. 42]. The scope of duties of the administrator defined in the enterprise bankruptcy law of China is highly coincident with the duties of judges in civil proceedings. For example, Article 57 stipulates that the administrator shall exercise the right to review the creditor's rights and prepare the statement of creditor's rights, and Article 48 stipulates that the administrator shall have the duty to investigate the creditor's rights of employees. These are different from traditional private law subjects. In the "general execution" procedure of the bankruptcy procedure, Section 2 "price change and distribution" of Chapter 10 "bankruptcy liquidation" of the enterprise bankruptcy law basically refers to the civil execution procedure, which stipulates the work organization, scheme formulation and specific execution of the administrator in the aspects of auction and price change. At present, transactions on Alibaba, JD and other judicial auction network platforms are also very active, These all represent the public law characteristics of the managers in performing their duties.
Therefore, part of the responsibilities entrusted to the administrator by the enterprise bankruptcy law are similar to those of the judges of the people's court in content. This part of the functions and powers of the administrator has a quasi judicial status. In some bankruptcy cases, the "takeover meeting" presided over by the judge also has a strong sense of judicial ceremony. In this paper, the author defines the duty of the administrator to take over the debtor's information as "power" rather than "right", which is also from this perspective, in order to strengthen the single duty and unconditional cooperation of the administrator in these powers.
2. Expand the scope of the subject of taking over responsibilities and obligations
When the administrator takes over the performance of the debtor's data, the scope of the obligation subject of the act should be expanded and explained, and it should directly point to the specific natural person, so that the obligation can be compacted and the information barrier can be cleared. In the bankruptcy proceedings, the debtor's actual controller, legal representative, director, senior management, financial director, as well as technical, engineering, administrative, legal, assistant and other important positions and functions, and some even do not hold positions in the debtor, such as relatives and fellow citizens of the actual controller (commonly known as the "boss") should be included in the scope of objects responsible for cooperating with the administrator to exercise information power.
For many enterprises entering the bankruptcy procedure, due to reasons such as management style, risk aversion and unpaid insurance, personnel changes are relatively large, and some of the debtor's remaining personnel are not aware of the previous events, which is an important factor causing information asymmetry among all parties in the bankruptcy procedure. In addition to on-the-job and off-duty personnel, the above-mentioned personnel should also be expanded to include those who have left the company. The information they have is related to the legal order of the bankruptcy proceedings and the major interests of creditors, and they can not go away. Even if the debtor is in arrears of wages and insurance, the obligations under the labor law and the obligations under the commercial law should not be confused, let alone offset each other. In practice, many resigned employees do not cooperate with the manager's investigation work, asking questions and asking questions, and even package themselves as victims. While enjoying the priority of employee's creditor's rights, they evade their obligations, which brings great obstacles to the manager's work.
If the bankruptcy procedure is a special procedure of civil proceedings, it can be adjusted by reforming the witness system of civil proceedings and including the above-mentioned personnel into the special witness system of bankruptcy proceedings. Paragraph 1 of Article 72 of China's civil procedure law stipulates that "all units and individuals who know the situation of a case have the obligation to testify in court. The responsible person of the relevant unit shall support the witness to testify." It is possible to refer to the witness system in civil proceedings and assign the relevant personnel of the debtor to the witness, so as to "Penetrate" the subject of the taking over obligation from the debtor to the aforementioned series of natural persons.
3. Collaborative support of the government and society to the information power of the manager
All relevant government departments shall provide coordinated support for the information power of the administrator, including industry and commerce, taxation, customs, social security, projects, planning, urban construction, vehicles, registered residence, fire protection, real estate registration, people's Bank of China, trademark patent and other administrative departments shall provide convenience for the administrator to investigate the debtor's information, so as to prevent the administrator from frequently applying to the people's court to issue investigation orders, which will only increase the costs of all parties and the society. Make it clear by legislation that financial institutions and other enterprises and institutions shall cooperate with the manager in the performance of the information power, provide convenience for the manager to query the debtor's bank account, securities and stocks, bill information, seal replacement and personnel change, and provide convenience for the manager to attend the shareholders' meeting and exercise the shareholders' right to know on behalf of the debtor. The provisions of paragraph 2 of article 185 of the securities law of the people's Republic of China that "when the securities regulatory authority under the State Council performs its duties according to law and conducts supervision, inspection or investigation, the relevant departments shall cooperate with each other" may be referred to to to establish the obligation of each relevant department to cooperate with the administrator in the field of bankruptcy law, so as to indirectly realize the takeover effect through the investigation of the administrator.
4. Amend related laws to provide convenience for workers
The core problem to be solved by the social system is the incentive problem, that is, how to make individuals responsible for their own behavior. If everyone is fully responsible for his own behavior, the society can achieve Pareto optimality [Zhang Weiying: property rights, government and reputation, life, reading and new knowledge Sanlian bookstore, 2001 edition, P. 63]. As mentioned above, if reference is made to the witness system in civil proceedings, the debtor's subject of obligation is entrusted with the obligation of the witness, but China's Civil Procedure Law
In Article 118 of the minutes of the national civil and commercial trial meeting of the people's court, the Supreme People's court adopts the method of analogical reasoning, and refers to the provisions on obstruction of justice in civil proceedings, imposes judicial fines, detention and criminal liabilities on the debtor's personnel who cooperate with the liquidation obligations, and restricts the legal representative and actual controller of the debtor from leaving the country. On April 25, 2020, the Supreme People's court officially issued the opinions on promoting the efficient trial of bankruptcy cases according to law, Item 8 of Article 2 stipulates that: "The administrator shall take over the debtor's property, seals, account books, documents and other materials in a timely manner. If the debtor refuses to hand over, the people's court may, upon the application of the administrator or according to its authority, impose a fine on the person directly responsible, and may make a ruling on the content and time limit that the debtor should hand over. If the debtor fails to perform the obligations determined in the ruling, the people's court may, in accordance with the relevant provisions of the enforcement procedure of the civil procedure law Compulsory delivery and other necessary measures shall be enforced. " It can be seen that the problem of the administrator's taking over the debtor's data is not a case problem, and has entered the vision of the highest judicial institution in China. The relevant solutions are also being put forward gradually, and the corresponding theoretical research should also be actively followed up.
Compared with creditor's rights review, creditor's meeting, draft reorganization plan, and bankruptcy property distribution plan, it seems to be a "small matter" how to build a positive system for the administrator to take over the debtor's information and remove the obstacles for the administrator to perform his duties, but it is a "big problem" facing the improvement of the bankruptcy legal system. This paper first analyzes the problems existing in the legal provisions and the obstacles in the judicial practice of the administrator's taking over the debtor's data, and demonstrates the concept that the debtor's data and the "information" contained therein are the basis of the management work. On this basis, it provides reference suggestions for the administrator to remove the obstacles in taking over the debtor's data and improve the system, so as to be beneficial to the improvement of the system and the solution of related problems.
1、 Questions raised
In the bankruptcy procedure, the debtor's information is the basis for the administrator to carry out the management work. From the perspective of information theory, the essence of the management process is the information processing process. China's laws also follow this law. Among the duties of the administrator specified in Article 25 of the enterprise bankruptcy law, item (I) determines that the administrator "takes over the debtor's property, seals, account books, documents and other materials". The duties of the administrator basically revolve around the path of "obtaining information - analyzing information - processing information - outputting information". In the bankruptcy proceedings, the game between creditors, investors and other stakeholders is, in a certain sense, manifested as the capture of the debtor's information, so as to obtain more data support for their own interests. If the administrator cannot successfully take over the debtor's information, it will not be able to systematically grasp the debtor's information, resulting in asymmetric information of all parties in the bankruptcy proceedings. Information is the basis of creditors' decision-making and the premise of completing investment transactions. The more sufficient information, the lower the transaction cost and the higher the transaction efficiency. On the contrary, the transaction cost rises and the transaction efficiency decreases. Information is the basis for the operation of the "marketization" bankruptcy procedure. The obstacle encountered by the receiver in taking over the debtor's information is the erosion of this basis, and corresponding systems must be established to protect it.
The influence of system on human choice is realized by influencing the availability of information and resources, shaping the power, and establishing the basic rules of social transactions. Institutional innovation contributes to development by providing more efficient organization of economic activities, and these approaches usually lead to the adjustment of economic fundamentals [[US] v Ostrom et al.: "institutional analysis and Reflection on development", translated by Wang Cheng et al., commercial press, 1992 edition, page 2. In the market-oriented and legal bankruptcy proceedings, the receiver system of the administrator is to enable the administrator to obtain the debtor's information resources according to law, thereby providing the information basis for the administrator to perform his duties and exercise the management rights. The legal scope of the administrator's performance of duties is determined by the enterprise bankruptcy law. The actual scope of the administrator's performance of duties is determined by information, which is a necessary condition for management. Information is the basis for individual behavior to be supervised [Zhang Weiying: property rights, government and reputation, life, reading and new knowledge Sanlian bookstore, 2001 edition, page 6.], The obstacles to the administrator's taking over the debtor's information have led to the administrator's inability to exercise the right to recover the debtor's property under Article 34 of the enterprise bankruptcy law based on information asymmetry, the legitimate rights and interests of creditors and debtors have been damaged, and the legislative purpose of the bankruptcy law has been frustrated.
The bankruptcy system, especially the reorganization system, has been closely connected with the industry since its inception, but is relatively distant from the traditional law itself. "In fact, the history of company reorganization is a failure history of railway companies in the 19th century" [[US] David A. skill, Jr.: the world of Debt: the history of American bankruptcy law, translated by Zhao Binghao, China Legal Publishing House, P. 56]. The bankruptcy procedure solves the property distribution problem of "the debtor is hungry" in an orderly manner, which is closely related to the business management, merger and reorganization of enterprises. The traditional bankruptcy legal system follows the conceptual system of the civil and commercial law, paying attention to the concepts in the legal field such as creditor's rights and property rights, such as priority, cancellation right, right of recovery, joint and several creditor's rights, contract dissolution, etc. as for the "management" of the debtor, the corresponding legal conceptual framework and legal system have not been evolved yet. The bankruptcy law theory as a whole attaches importance to the "hardware" of the debtor's legal property and debt Ignoring the suspicion of "software" in the process of enterprise management, which is a multidisciplinary comprehensive field spanning law, management, accounting, economics and informatics. The theory of bankruptcy law in China prefers to interpret the bankruptcy procedure from the perspective of general execution procedure, and fails to fully learn from the knowledge accumulation of other disciplines and industries. The bankruptcy procedure is the last line of defense for the protection of creditors' interests. In the bankruptcy procedure, the silence and inaction of the debtor's directly responsible personnel refused to cooperate with the administrator's taking over, but the administrator could not invoke the "default judgment" system in the civil procedure to solve the problem. This in turn constitutes the remarkable characteristics of the bankruptcy procedure different from the general procedure. Therefore, it is necessary to re-examine the problem of removing the obstacles of the administrator's taking over in the bankruptcy procedure. Taking over the debtor's information is the starting point of the administrator's performance of duties and the premise of the administrator's other performance of duties. It is not only related to procedural justice, but also related to substantive justice.
2、 Analysis of the reasons for the obstacles of the administrator taking over the debtor's information
The obstacles of the administrator taking over the debtor's information are difficult to predict by legislators in the system design, but they are often encountered in the practice of bankruptcy law. The existence of such obstacles is caused by the objective factors of the development stage of the bankruptcy law culture, the competent factors of the interests of the interested parties themselves, the lack of coordination and tension between various systems at different development stages, and the cross influence of various subjective and objective factors. This is an attempt to analyze.
（1） The actual controller does not cooperate based on interest expectation
The conventional competition for corporate control occurs between the new and old shareholders in the equity M & a market, while the competition for corporate control in the bankruptcy proceedings occurs between the original actual controller and the manager. The former is a competition in the company law, and there are various measures based on acquisition and anti acquisition; The latter is a competition in the bankruptcy law, and the interest demands are very different from the former. In the bankruptcy proceedings, especially when the debtor enters the bankruptcy proceedings passively, the manager will actually exercise part of the functions and powers of the board of directors and the management. At this time, the actual controller of the debtor will face the loss of the control right of the enterprise. On the one hand, the enterprise entering the bankruptcy proceedings will be taken over by the manager; on the other hand, other related enterprises and related creditor's rights will also face the risks of merger bankruptcy and liquidation of inferior ordinary creditor's rights.
Since the enterprise is in trouble, the actual controller has generally taken positive self-help measures. When the enterprise enters the bankruptcy procedure and the control is transferred to the manager, the phased results achieved by these commercial self-help measures are forced to be cleared. The commercial logic of the debtor's self-help and the legal logic after the manager takes over are two different language systems, and the transaction structure design of the two is completely different, In particular, the substantive rights and interests of the original actual controller will be adjusted by the "principle of absolute priority", and its substantive rights and interests are in a inferior position in law.
In order to gain the initiative, in practice, the debtor and its staff often ignore, deliberately delay or hide important information and do not cooperate with the manager to take over. Through the isolation of the debtor's information and the use of the statutory time limit of the enterprise bankruptcy law, the manager's performance of duties is "impossible to start", so that the manager can retreat from difficulties, Some even take advantage of interests to entice and incite creditors and employees to petition and appeal in many ways to interfere with the performance of the manager's duties. They hold the mentality of "a large number of people, a large number of people" and "the law is not responsible for many people", and intend to let the debtor withdraw from the bankruptcy procedure and return to the control of the original shareholders.
（2） Hiding illegal acts in enterprise operation
Most enterprises in China have nonstandard behaviors in the process of operation. There may be many illegal behaviors in the aspects of original accumulation, registered capital, financing and lending, fund management, interest transmission, fraudulent subsidies, illegal fund-raising, tax evasion, intellectual property rights, and confusion of personality. These behaviors may be re investigated and audited in the bankruptcy proceedings, and will be subject to legal evaluation and correction, For some debtors, especially those enterprises that grow up savagely, once all the problems are exposed to the sun, a series of chain reactions and even criminal legal liabilities will occur. For the sake of self-protection, the actual controller and the management of the debtor will hide important materials from the manager, deliberately set obstacles for the manager and the audit institution, delay and hide important materials, and lead to a management vacuum through information barriers, making it impossible for the manager to perform his duties.
（3） The scope of the debtor's "directly responsible person" is not clear
Article 127 of China's enterprise bankruptcy law stipulates that: "If the debtor, in violation of the provisions of this law, refuses to submit or submit to the people's court an untrue statement of the state of property, a detailed list of debts, a detailed list of creditor's rights, relevant financial and accounting reports, as well as the payment of employees' wages and social insurance premiums, the people's court may impose a fine on the person directly responsible according to law. If the debtor, in violation of the provisions of this law, refuses to hand over the property, seals, account books, documents and other materials to the administrator, or If the person who forges or destroys the evidence materials related to the property and makes the property status unknown, the people's court may impose a fine on the person who is directly responsible according to law. " The concept of "directly responsible person" is adopted in legislation, but the specific scope is not clear and the judicial interpretation is not clear. In general, in bankruptcy cases, most of the debtor's staff understand the "enterprise" rather than themselves as the subject of responsibility. Their attitude is negative, and the manager has to "coax" to work. Some still continue to accept only the instructions of the actual controller and the original superiors on the basis of salary arrears or other reasons, and turn the information that should belong to the "public goods" of all creditors into "private goods".
The reason for the non cooperation of the debtor's directly responsible personnel is roughly the same as that of the actual controller. Such personnel may be the "trusted ones" and "direct relatives" of the actual controller's hometown, classmates, drivers, relatives, special interest subjects, etc. some have no actual position in the enterprise and have no labor relationship with the enterprise. In addition, there are also improper reasons such as salary arrears, personal grievances, corporate politics, etc. for the non cooperation of the debtor's relevant directly responsible personnel, which also need to be further clearly included in the scope of legal regulation to directly implement the responsibility to the individual.
（4） Restriction of new labor relations
After the relevant personnel of the debtor's key positions leave the debtor's enterprise and confirm the labor relationship with the new employer, they will be subject to the management and restriction of the newly signed labor contract, which forms a direct conflict with their cooperation with the manager in handling the takeover. At this time, the personnel who have left the key positions of the debtor will be subject to the dual legal constraints of the labor relations of the new unit and the cooperation with the administrator in taking over the work in the bankruptcy proceedings. However, the enterprise bankruptcy law or the relevant labor contract legislation does not regulate this conflicting obligation, which adds obstacles to the administrator taking over the debtor's information. In the bankruptcy practice, it often happens that the debtor's key personnel refuse to cooperate with the administrator's takeover and investigation on the ground that they are busy with new work.
（5） Lack of coordination between government and social public functional institutions
1. The government administrative department cannot actively cooperate with the investigation and take over
The relevant registration departments of the government, such as real estate, social security, development and reform, market, taxation, customs, environmental protection, science and technology, and planning, cannot actively cooperate with the investigation conducted by the administrator to take over the debtor's information, such as the unpaid social security of employees that may be involved in the bankruptcy of labor-intensive enterprises; The bankruptcy of a real estate enterprise may involve the transfer contract of the state-owned construction land use right, the construction land planning license, the content change of the land planning license, the construction project planning license, the construction project construction license, the layered household list, the project plan, the construction drawing, the planning index table, the government approval, and the filing and advance notice registration of the real estate sales; There is also a need to retrieve the debtor's annual inspection information, tax declaration data, invoice application and various data retrieved based on E-government.
2. Social public functional institutions cannot actively cooperate with the investigation and take over
During the performance of duties, the administrator also needs to communicate with institutions with social and public functions, such as obtaining the debtor's account number (bank), obtaining the debtor's securities account (securities broker), issuing an announcement in the media (newspaper office) in the name of the debtor, obtaining water, electricity and other information, re engraving the debtor's seal (seal company), investigating the debtor's notarized creditor's rights documents (notary office), These institutions sometimes fail to cooperate with the administrator, which causes the administrator to apply to the court for an investigation order, which only increases the operating cost of the system and reduces the operating efficiency of the bankruptcy procedure.
3、 Removal of takeover obstacles: Centering on the information power of the manager
The administrator takes over the debtor's information, ultimately in order to fully grasp the debtor's property and debt information, so as to promote the market-oriented transaction and value maximization of the debtor's property, business and capital contribution in the bankruptcy liquidation or reorganization process, and realize the debtor's debt liquidation and the creditor's interests maximization. The transaction process of the market is an asymmetric game process of information. In this sense, the administrator's taking over of the debtor's information is the starting point of the debtor's "marketization" bankruptcy procedure. Information is one of the five key parts of market microstructure [the market microstructure is composed of five key parts: technology, rules, information, market participants and financial instruments. The main role of market organizers is to reasonably organize the above five parts to maximize their effectiveness. The market usually uses four indicators of liquidity, volatility, transaction cost and transparency to reflect market quality or market efficiency. See Li Ping, Zeng Yong and Tang xiaoi: overview of market microstructure theory , published in Journal of management science, No. 5, 2003], the key issue to improve the efficiency of the operation of the bankruptcy procedure lies in how the administrator can improve the sufficiency, accuracy and symmetry of information.
The market-oriented bankruptcy must rely on the guidance of information. The administrator edits the debtor's information into the legal language in the bankruptcy proceedings, that is, forms various reports, decisions, plans and drafts, and makes various legal acts such as cancellation, recovery, recovery, offset and investigation. It can be said that if there is no sufficient information, the performance of the administrator will be like a blind man feeling an elephant, which will seriously harm the interests of creditors and the efficiency of the bankruptcy proceedings.
（1） Power perspective of information
Information is the basic element of management system and the medium of organic connection. The process of management is the process of information acquisition, processing and decision-making using information [Yang Shanlin and Liu Yezheng: management Informatics, higher education press, 2003 edition, page 1]. Information is an economic and social resource with high gold content; One of the important purposes of power is to master certain information resources. Power is changing from "having abundant capital" to "having abundant information", and information becomes power, especially before information diffusion [[US] Joseph S. Knight: hard power and soft power, translated by men Honghua, Peking University Press, 2005 edition, P. 105]. The universality of information power covers almost all aspects of social life, connecting the elite with the masses, and combining the isolated and isolated experience fields of individuals with the external world, playing an important role in social integration [Wang Dongmei: Information Power: an important force in shaping social order, published in Tianjin Social Sciences, issue 4, 2010]. Information power can be divided into information claim right and information control right.
A normal operating enterprise is essentially composed of a series of contracts, and the contractual control right and the information control right together constitute the actual control right [Li Wenjing: Research on Accounting Conservatism based on the July process -- Another Interpretation from the perspective of information rights, Economic Science Press, 2008 edition, P. 130.], Before the debtor enters the bankruptcy proceedings, the debtor is established and continues to operate based on the contract, The actual controller and the investor have the right to request the distribution of the remaining property [the right to request the distribution of the remaining property refers to the property right of the shareholders to request the distribution of the remaining property after the company has entered the liquidation procedure and the company's debts have been paid off. Huang Bin: practical analysis of the right to request the distribution of the remaining property, published in "Law School of Peking University Magic School", website: http://lawyeredu.pkulaw.cn/index.php?m=content&c=index&a=show&catid=10&id=1142 , last visit on July 5, 2020. The provisions of the Supreme People's Court on Several Issues concerning the application of the company law of the people's Republic of China (III) clearly define the right of claim for distribution of residual property as the right of shareholders, Article 16: "if a shareholder fails to fulfill or fully fulfill his obligation of capital contribution or withdraws his capital contribution, the company makes corresponding reasonable restrictions on his rights of shareholders such as the right to claim for profit distribution, the right of preemption of new shares and the right to claim for distribution of residual property according to the articles of association or the resolution of the shareholders' meeting, and the people's court shall not support the request of such shareholder to determine that the restriction is invalid."] The right to obtain information and the right to control information of an enterprise is embodied in the right to know and the right to vote. After the debtor entered the bankruptcy procedure, the original control system of the debtor was disintegrated and reconstructed, and the administrator took over the control of the debtor's enterprise on behalf of all creditors. The administrator's taking over of the debtor's data is actually the administrator's right to obtain information and to obtain the debtor's actual control on behalf of the creditor.
（2） The obstacle of taking over will directly infringe on the interests of creditors
Coase's enterprise contract theory has strong explanatory power in both external operation and internal management of enterprises [[US] Ronald h. Coase et al.: "the nature of enterprises", translated by Yao Haixin et al., commercial press, 2010 edition, P. 37.], Some scholars have also carried out contract analysis on the bankruptcy reorganization system, holding that "the company in the reorganization is essentially a contract bundle composed of a series of enterprises" [Wang zuofe: Contract Analysis of the company reorganization system, China University of political science and Law Press, 2013 edition, p. 6]. According to the analysis of the contract theory, when an enterprise enters the bankruptcy procedure, the legal contract control right should be transferred to the manager and creditors. The provisions of Article 25 of the enterprise bankruptcy law on the duties of the manager and the provisions of other managers' rights fully reflect the undertaking of the rights of the shareholders' meeting and the board of directors under the non bankruptcy state of the enterprise. In the bankruptcy proceedings, the actual controller and the investor have legally lost the debtor's "contractual control right", but they can still exert great influence through the "information control right". In the absence of information, the administrator will not be able to truly perform the management duties.
In the bankruptcy proceedings, the creditor's rights are prior to the debtor's capital contributors to obtain repayment, the related party creditors who abuse the control right do not have the right of exclusion or priority to the debtor, and their creditor's rights are distributed in a second order to other ordinary creditors. All these management work related to the major interests of creditors rely on the professional judgment of the administrator as professionals (lawyers and accountants) on basic information. It can be seen that the existence of takeover obstacles such as refusing to cooperate with the manager's takeover and shielding information from the manager will directly infringe on the rights and interests of creditors.
（3） The construction of the Obstacle Elimination System of the manager's taking over
1. Confer quasi judicial power on some functions and powers of the administrator.
The private subject can exercise the functions and powers with the nature of public law. Distinguish between the nature of the subject and the nature of the authority, that is, although the manager is generally a market subject such as a law firm, part of the authority exercised by the manager can be characterized as quasi judicial power, and the private subject is given the authority to perform the public power factor based on the designation of the people's court and legal authorization. On the theory of "public institution theory", "private institution theory" and "trust theory" as the main body of the administrator [Xu Defeng: Theory of bankruptcy law, Peking University Press, 2015 edition, pp. 257-260], In terms of institutional structure, the "nature" of the manager can be avoided, and the "behavior" of the manager can be directly adjusted, that is, Article 25 of the enterprise bankruptcy law and other relevant responsibilities can be divided into public law behavior (i.e., quasi judicial behavior) and private law behavior. Among them, the functions and powers of taking over the debtor's information, investigating and managing the debtor's property, and investigating the creditor's rights of employees can be included in the quasi judicial behavior of the manager; The decision on the debtor's internal management affairs, the management of the debtor's property, the exercise of the right of cancellation, the right of recovery, the right of offset and other functions and powers may be included in the private law acts of the administrator. Some scholars believe that if the debtor is lazy or refuses to hand over the materials, "the administrator can directly request the court for compulsory execution according to the bankruptcy acceptance ruling". In terms of comparative law, Japan and Germany have corresponding legislation [Wang Xinxin: a course of bankruptcy court and cases, China Renmin University Press, 2010 edition, P. 83].
As a component of traditional commercial law, bankruptcy law belongs to the category of private law that regulates the rights and obligations between private subjects. The autonomy of private law is the iron law in the field of private law. With the changes of economic society and the evolution of legal concepts, the phenomenon of so-called "public law of private law" has emerged. The jurisprudential basis of the legalization of private law is based on the implementation of the dual distinction between private law and public law. On the one hand, it affirms and recognizes the restrictions and amendments of public law principles and public law obligations on private law principles and private law autonomy; On the other hand, through the extension and expansion of public law to the field of private law, the scope of application of public law has been expanded [Tian Xiqing: Rethinking the division of private law and public law -- from the perspective of public law of private law, published in Chaoyang law review, issue 1, 2014]. This is that the public law system reduces the burden of private law ethically [[German] Rolf keniper: Law and history -- on the formation and changes of the German civil code, translated by Zhu Yan, Law Press, 2003 edition, P. 42]. The scope of duties of the administrator defined in the enterprise bankruptcy law of China is highly coincident with the duties of judges in civil proceedings. For example, Article 57 stipulates that the administrator shall exercise the right to review the creditor's rights and prepare the statement of creditor's rights, and Article 48 stipulates that the administrator shall have the duty to investigate the creditor's rights of employees. These are different from traditional private law subjects. In the "general execution" procedure of the bankruptcy procedure, Section 2 "price change and distribution" of Chapter 10 "bankruptcy liquidation" of the enterprise bankruptcy law basically refers to the civil execution procedure, which stipulates the work organization, scheme formulation and specific execution of the administrator in the aspects of auction and price change. At present, transactions on Alibaba, JD and other judicial auction network platforms are also very active, These all represent the public law characteristics of the managers in performing their duties.
Therefore, part of the responsibilities entrusted to the administrator by the enterprise bankruptcy law are similar to those of the judges of the people's court in content. This part of the functions and powers of the administrator has a quasi judicial status. In some bankruptcy cases, the "takeover meeting" presided over by the judge also has a strong sense of judicial ceremony. In this paper, the author defines the duty of the administrator to take over the debtor's information as "power" rather than "right", which is also from this perspective, in order to strengthen the single duty and unconditional cooperation of the administrator in these powers.
2. Expand the scope of the subject of taking over responsibilities and obligations
When the administrator takes over the performance of the debtor's data, the scope of the obligation subject of the act should be expanded and explained, and it should directly point to the specific natural person, so that the obligation can be compacted and the information barrier can be cleared. In the bankruptcy proceedings, the debtor's actual controller, legal representative, director, senior management, financial director, as well as technical, engineering, administrative, legal, assistant and other important positions and functions, and some even do not hold positions in the debtor, such as relatives and fellow citizens of the actual controller (commonly known as the "boss") should be included in the scope of objects responsible for cooperating with the administrator to exercise information power.
For many enterprises entering the bankruptcy procedure, due to reasons such as management style, risk aversion and unpaid insurance, personnel changes are relatively large, and some of the debtor's remaining personnel are not aware of the previous events, which is an important factor causing information asymmetry among all parties in the bankruptcy procedure. In addition to on-the-job and off-duty personnel, the above-mentioned personnel should also be expanded to include those who have left the company. The information they have is related to the legal order of the bankruptcy proceedings and the major interests of creditors, and they can not go away. Even if the debtor is in arrears of wages and insurance, the obligations under the labor law and the obligations under the commercial law should not be confused, let alone offset each other. In practice, many resigned employees do not cooperate with the manager's investigation work, asking questions and asking questions, and even package themselves as victims. While enjoying the priority of employee's creditor's rights, they evade their obligations, which brings great obstacles to the manager's work.
If the bankruptcy procedure is a special procedure of civil proceedings, it can be adjusted by reforming the witness system of civil proceedings and including the above-mentioned personnel into the special witness system of bankruptcy proceedings. Paragraph 1 of Article 72 of China's civil procedure law stipulates that "all units and individuals who know the situation of a case have the obligation to testify in court. The responsible person of the relevant unit shall support the witness to testify." It is possible to refer to the witness system in civil proceedings and assign the relevant personnel of the debtor to the witness, so as to "Penetrate" the subject of the taking over obligation from the debtor to the aforementioned series of natural persons.
3. Collaborative support of the government and society to the information power of the manager
All relevant government departments shall provide coordinated support for the information power of the administrator, including industry and commerce, taxation, customs, social security, projects, planning, urban construction, vehicles, registered residence, fire protection, real estate registration, people's Bank of China, trademark patent and other administrative departments shall provide convenience for the administrator to investigate the debtor's information, so as to prevent the administrator from frequently applying to the people's court to issue investigation orders, which will only increase the costs of all parties and the society. Make it clear by legislation that financial institutions and other enterprises and institutions shall cooperate with the manager in the performance of the information power, provide convenience for the manager to query the debtor's bank account, securities and stocks, bill information, seal replacement and personnel change, and provide convenience for the manager to attend the shareholders' meeting and exercise the shareholders' right to know on behalf of the debtor. The provisions of paragraph 2 of article 185 of the securities law of the people's Republic of China that "when the securities regulatory authority under the State Council performs its duties according to law and conducts supervision, inspection or investigation, the relevant departments shall cooperate with each other" may be referred to to to establish the obligation of each relevant department to cooperate with the administrator in the field of bankruptcy law, so as to indirectly realize the takeover effect through the investigation of the administrator.
4. Amend related laws to provide convenience for workers
The core problem to be solved by the social system is the incentive problem, that is, how to make individuals responsible for their own behavior. If everyone is fully responsible for his own behavior, the society can achieve Pareto optimality [Zhang Weiying: property rights, government and reputation, life, reading and new knowledge Sanlian bookstore, 2001 edition, P. 63]. As mentioned above, if reference is made to the witness system in civil proceedings, the debtor's subject of obligation is entrusted with the obligation of the witness, but China's Civil Procedure Law
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