The Role of the Administrator in Chinese Bankruptcy Law


Examination Thesis, 2008
10 Pages, Grade: B+

Excerpt

Table of Content

1. A short Overview: The History of Bankruptcy

2. The Administrator in the Chinese Bankruptcy Law of 2006
2.1 The Duties and Functions of the Bankruptcy Administrator
2.2 Who can be a Bankruptcy Administrator
2.3 The Register of Bankruptcy Administrators
2.4 The Bankruptcy Administrators Remuneration

3. Conclusions

4. Bibliography

The Role of the Bankruptcy Administrator in Chinese Bankruptcy Law

1. A short Overview: The History of Bankruptcy

The term ‘bankruptcy’ origins in the two Latin words bancus and ruptus. These two words translated have the meaning ‘bench’ or ‘table’ and ‘broken’. Although the term is of Latin origin, it is not of ancient Roman origin and the roots of bankruptcy are much older.

The first credits were used in the ancient Middle East empires of Assyria and Babylon 1000 BC. Egypt was also one of the first empires knowing a credit system.

Further on the Greek polis’ knew bankruptcy. In Athens, a debtor was thrown into jail. This method of dealing with bankruptcies was widely used and had to be given up, because finally too many farmers were a debtor’s prison and too few farmers were free to tend the corps.

In ancient Rome a debtor could be sold into slavery, which even was a European tradition after the decline of the Roman Empire.[1] In medieval Europe the debtor was treated as a thief.[2]

In medieval Italy the first modern changes in bankruptcy law have been made. All the possessions of a bankrupt merchant have been auctioned. From this time the term ‘bankruptcy’ emerged; if the debtors asset was not enough to pay off all the creditors, his trade bench was destroyed, which means banca rotta in Italian and bancus ruptus in Latin. To go a little bit deeper, the English expression ‘bankrupt’ seems to have its origin in the Latin name and the German expression ‘bankrott’ seems to have its origin in the Italian name.

In the year 1285, 70 years after the Magna Charter, England allowed debtors to be imprisoned. The first English bankruptcy law was passed under the reign of Henry VIII in the year 1542. Debtors were called ‘offenders’ and bankruptcy was a crime. His daughter, Queen Elizabeth I, the law was clarified; only merchant can be declared bankrupt, after a creditor’s application. It seems like the modern changes were based to Italy and the modern ideas have not reached other European countries.[3]

In 1833 the United States abolished the imprisonment of debtors[4] and later in the 19th century the principle of reorganization was introduced into the US bankruptcy law, this had to happen because of the first major cases of bankruptcy under the US railway companies.[5]

In ancient and medieval times there were no bigger differences between the conception of bankruptcy rules and regulations of the west and of the east. Both regarded a debtor, who had no chance to pay his debts, as criminals. Under the rule of Genghis Khan even the death penalty could have waited for debtor, who was bankrupt for the third time.

In China the first bankruptcy law was introduced under the reign of the Qing Dynasty in the year 1906. The civil law based legislation was canceled two years later. During the period of the Republic of China, northern warlords drafted a bankruptcy law in 1915. Twenty years later, in the year 1935, the Nationalist Government passed a bankruptcy law, which was into effect until the People’s Republic of China was proclaimed in 1949. After that the People’s Republic of China had no bankruptcy law for more than 30 years. In the 1980s the drafting of a new bankruptcy law began and was finished with the National People’s Congress passing the law in the year 1986 and it came into effect on November 1st, 1988.[6] Even before the accession of China to the World Trade Organization (WTO) in December 2001, there has been a draft for a new bankruptcy law in June 2000[7], but the new and now being in effect bankruptcy law was passed years later. On August 27th, 2006 the new law was passed and it came into effect on June 1st, 2007.

2. The Administrator in the Chinese Bankruptcy Law of 2006

According to the new Chinese Bankruptcy Law 2006 the bankruptcy administrator is designated by the court, when it is accepting an application for bankruptcy.[8] In Austria the bankruptcy administrator, the so called Masseverwalter, is also appointed by the court.[9] The bankruptcy administrator, if it is an institution (intermediary agent, see below) can only refuse being appointed as a bankruptcy administrator with a justified reason, after it is appointed, it also needs the people’s courts approval to resign.[10]

[...]


[1] http://select.nytimes.com/2005/11/16/opinion/15talking.timeline.html?_r=1, December 5th, 2008

[2] http://www.jura.uni-rostock.de/Bank/Docs/2002_tagungsbericht.pdf, December 5th, 2008

[3] http://select.nytimes.com/2005/11/16/opinion/15talking.timeline.html?_r=1, December 5th, 2008

[4] http://select.nytimes.com/2005/11/16/opinion/15talking.timeline.html?_r=1, December 5th, 2008

[5] http://www.jura.uni-rostock.de/Bank/Docs/2002_tagungsbericht.pdf, December 5th, 2008

[6] Bankruptcy Law in China: Lessons from the Past Twelve Years, Li Shuguang, Harvard Asia Quarterly; http://www.leggicinesi.it/dottrina/LiShuguang_Bankruptcy.pdf, December 5th, 2008

[7] The Bankruptcy Law of the People’s Republic of China – Materials on the Drafting Process 2000, Citic Publishing House 2004, p. 231

[8] Art. 13 and Art. 22, Law of the People’s Republic of China on Enterprise Bankruptcy

[9] http://www.help.gv.at/Content.Node/99/Seite.990021.html, December 7th, 2008

[10] Art. 33 and 34, The Provisions of the Supreme People's Court on the Designation of Administrators during the Trial of Enterprise Bankruptcy Cases; and Art. 29, Law of the People’s Republic of China on Enterprise Bankruptcy

Excerpt out of 10 pages

Details

Title
The Role of the Administrator in Chinese Bankruptcy Law
College
Tsinghua University
Grade
B+
Author
Year
2008
Pages
10
Catalog Number
V127190
ISBN (eBook)
9783640347551
ISBN (Book)
9783640347308
File size
443 KB
Language
English
Tags
Chinese law, Bankruptcy law, bankruptcy administrator
Quote paper
Mag. Ludwig Hetzel (Author), 2008, The Role of the Administrator in Chinese Bankruptcy Law, Munich, GRIN Verlag, https://www.grin.com/document/127190

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