중국의 파산절차상 관리인제도 소개

In 2006, China enacted the new Enterprise Bankruptcy Law based on its past experience of handling bankruptcy cases for state-owned enterprises as well as the results of studying the laws of different countries. One of the significant aspects of the new Enterprise Bankruptcy Law was the introduction of a bankruptcy administrator policy upon which an expert in the bankruptcy field was authorized to perform bankruptcy affairs as an administrator and be supervised by the Court. The Peoples’ Supreme Court was in charge of the appointment of bankruptcy administrator who was selected to be the most appropriate person to handle the bankruptcy affairs out of several candidates including the intermediary organization such as law firms, accounting firms and bankruptcy litigation offices as well as individual attorneys or CPAs who were members of such intermediary organization. After selecting the administrator, the Court prepared the roster of bankruptcy administrators and organized the Evaluation Committee of the Court to guarantee fairness in the selection process. Once a detailed selection guideline was set up, the Evaluation Committee of the Court performed assessment on the candidates in accordance with the given selection criteria and picked the ones who were then included in the roster. As soon as the bankruptcy petition is filed at the Peoples’ Supreme Court, the Court appoints an administrator from the roster of the existing administrators including the intermediary organization or individual attorneys and CPAs. The Court uses three alternatives such as random, competition and recommendation methods in the selection process and chooses one out of the three options depending on the type of the specific bankruptcy case. It is an obligation of a bankruptcy administrator to perform his/her duties prescribed under the new Enterprise Bankruptcy Law independently with diligence and faithfulness. The new law authorizes the Peoples’ Supreme Court to issue an opinion on the details of the nomination, exemption, compensation and permission of the administrator whereas the Creditors’ Meeting and the Creditors’ Committee to supervise the activities of the administrator through the application for administrator exemption, the deliberation on administrator compensation and the requestion for further explanation or documents, and grant obligations on the administrator to report or give presentation before the Peoples’ Supreme Court, the Creditors’ Meeting and the Creditors’ Committee in an effort to exercise its rights of supervision. The administrator compensation is determined at the time the bankruptcy case is settled by the Peoples' Supreme Court and can be modified according to the real work situation. The payment of the administrator is determined by the certain ratio to the size of the bankruptcy asset used to pay back the debts. The application for a specific compensation payment filed by the administrator is approved afterwards by the Peoples' Supreme Court. The administrator’s compensation decided by the Peoples' Supreme Court can be subject to review and objection by creditors through the Creditors' Meeting. The new bankruptcy administrator policy signals that the Chinese government no longer plays a leading role in a bankruptcy case and such role is handed over to the Peoples' Supreme Court. Therefore it can be said that the fate of the new Chinese bankruptcy administrator policy is left in the hands of the capability of the Peoples' Supreme Court. The new Chinese bankruptcy administrator policy suggests that an ideal model for a government policy is determined not by its own but by the nation's society and culture.