Original title: Promote bankruptcy trials as a new engine for optimizing the business environment.
The report of the 20th National Congress of the Communist Party of China emphasized "creating a market-oriented, law-based, and international first-class business environment". The rule of law is the best business environment, and the rule of law is not only an intrinsic requirement of the market economy, but also the fundamental guarantee for its benign operation. The bankruptcy legal system is an important part of China's socialist market economic system, an important tool for realizing the adjustment of industrial structure and the transformation of old and new kinetic energy, and an important way to implement the decisive role of the market in the allocation of resources. As an important part of China's bankruptcy legal system, the bankruptcy trial system is related to economic development, people's livelihood and social stability. Doing a good job in bankruptcy adjudication and giving full play to the judicial functions of the people's courts will help promote the survival of the fittest, promote the optimal allocation of resources, prevent and resolve major risks, and is of great significance to optimizing the business environment under the rule of law.
In recent years, the Supreme People's Court has comprehensively guided and vigorously promoted the nationwide bankruptcy trial work, and the people's courts in various regions have forged ahead with determination to forge ahead and innovate, and the level of bankruptcy trial capacity has been rapidly improved. The Supreme People's Court issued corresponding judicial interpretations and judicial policy documents in a timely manner to explain the direction and tasks of bankruptcy adjudication; Released a series of typical bankruptcy trial cases to unify the adjudication standards in the field of bankruptcy trial; Promote the establishment of 17 bankruptcy courts, including the Beijing Bankruptcy Court, nearly 100 liquidation and bankruptcy courts, and special bankruptcy trial collegial panels, and improve the professionalism of the bankruptcy trial team; Establish a bankruptcy law research (research) base, actively carry out theoretical discussions, and improve the quality and efficiency of the governance of bankruptcy trial litigation sources. The local court actively publishes the annual bankruptcy trial work report) and typical cases, and conscientiously handles every bankruptcy case; All localities have established corresponding mechanisms for bankruptcy trials in accordance with local conditions, and disseminated valuable experiences that can be replicated throughout the country; explore the establishment of various innovative mechanisms for the conversion of enforcement into bankruptcy; Establish a bankruptcy information platform to promote the in-depth development of informatization of bankruptcy trials. With the continuous efforts of courts at all levels, the marketization, legalization, specialization, and informatization level of bankruptcy trials in China have been continuously improved, and a large number of distressed enterprises with rescue value and possibilities have been reborn through bankruptcy reorganization and reconciliation procedures, and a number of "zombie enterprises" have been accelerated through bankruptcy liquidation procedures, releasing production factors and promoting economic transformation. Bankruptcy trials have continuously achieved new results in promoting the construction of China's business environment, and have been widely praised at home and abroad.
Problems and experience coexist, and bankruptcy trials also face some bottlenecks and constraints. First of all, the bankruptcy legal system is not perfect. The revision of the Enterprise Bankruptcy Law has been included in the "Legislative Plan of the Standing Committee of the 14th National People's Congress" as "a draft law with relatively mature conditions to be submitted for deliberation during the term of office", but there is no clear legislative schedule, the personal bankruptcy system, the bankruptcy procedure for small and micro enterprises, the substantive merger system, and the pre-reorganization system are still missing, the bankruptcy system of financial institutions and the cross-border bankruptcy system are deficient, and there is also a lack of unified adjudication standards for special types of bankruptcy cases such as the bankruptcy of listed companies. Second, the quality and efficiency of bankruptcy trials need to be improved. In some localities, there are still problems such as difficulty in accepting bankruptcy applications, difficulties in advancing bankruptcy procedures, and long bankruptcy handling cycles, and the mechanism for transferring bankruptcy to bankruptcy has not yet given full play to its value function, and the professional construction of bankruptcy trials needs to be strengthened. Finally, the supervision and management system for bankruptcy cases needs to be further improved. The long time span and complexity of bankruptcy cases have increased the difficulty of trial supervision. Jiangsu, Zhejiang, Guangxi and other places have carried out useful explorations on the coordinated efforts of courts and procuratorates in bankruptcy cases, and procuratorial supervision in bankruptcy procedures deserves attention and research.
At present, it is necessary to face up to the problems and rise to the difficulties, conscientiously sum up the experience of Beijing, Shanghai, Shenzhen and other places in the reform of the system and the construction of mechanisms for "handling bankruptcy", further improve China's bankruptcy trial system, fully release the potential of bankruptcy trials for repair and rescue, and make bankruptcy trials a new engine for optimizing the business environment.
Improve the legal system for bankruptcy and improve the legal system for enterprise bankruptcy. Simplify the bankruptcy procedures of small and micro enterprises, build a whole-process protection model of bankruptcy liquidation, reorganization and reconciliation suitable for small and micro enterprises from the legislative level, provide flexible, efficient and low-cost "friendly" bankruptcy procedures for small and micro enterprises in distress, and protect the rights and interests of small and micro enterprises. Refine the relevant provisions on the connection between out-of-court reorganization and in-court judicial procedures, standardize the pre-reorganization procedures, and fully transform the results of negotiation and consultation formed in the pre-reorganization. Establish simplified bankruptcy procedures, so that cases such as the relationship between creditor's rights and debts are clear or the bankruptcy estate is insufficient to pay bankruptcy expenses can be concluded through summary procedures, so as to shorten the bankruptcy procedure period and improve the efficiency of bankruptcy trials. Improve the legal system for cross-border bankruptcy, strengthen international and inter-regional judicial cooperation in the handling of bankruptcy cases, serve the construction of the "Belt and Road", and enhance the level of opening up.
Establish the concept of overall coordination, and establish a substantive bankruptcy trial linkage mechanism. The lower and lower courts should reach a consensus and form a joint force to coordinate the promotion of bankruptcy trial work. Courts in various regions should also learn from each other and develop together. The court and ** should continue to optimize the coordination mechanism between the government and the court in handling bankruptcy. Bankruptcy cases are extremely comprehensive, and handling bankruptcy is by no means a matter for the courts. Local governments can work with the courts to resolve bankruptcy derivative issues involving people's livelihood and stability through the establishment of bankruptcy management departments and the establishment of enterprise bankruptcy public service centers, and support the courts in handling bankruptcy cases efficiently in accordance with the law.
Strengthen the construction of bankruptcy trial teams and raise the level of professionalism in bankruptcy trials. The court may organize training on a regular basis to enhance the comprehensive ability of bankruptcy trial judges in adjudicating in accordance with the law, resolving disputes, responding to emergencies, and coordinating the interests of all parties, cultivate the bankruptcy law thinking of relevant court judges in bankruptcy derivative litigation cases, and at the same time improve the evaluation mechanism and management system for judges, and develop and integrate the digital information platform required for bankruptcy case handling in the context of the construction of smart courts. In addition, the court and relevant departments should support and protect the performance of bankruptcy administrators, optimize the supervision and management mechanism, give full play to the role of bankruptcy administrator associations, and promote the improvement of the quality and efficiency of bankruptcy case trials.
Authors: Gao Hong and Xu Yangyang, assistant researcher and researcher of the Research Center for the Rule of Law in the Business Environment of Chinese University, respectively).
*:Light**.