Please refer to: /question/7743173.html Since 2000, the draft of the new bankruptcy law has been revised many times.

In the draft submitted by the Finance and Economic Committee to the Standing Committee of the National People's Congress in June 2004, the provisions regarding corporate corporate governance have been quite substantial.

Broadly speaking, these provisions can be divided into two broad categories, one is the restrictions on management's behavior during the bankruptcy proceedings, and the other is the pursuit of conduct before the bankruptcy proceedings begin.

At present, the draft of the new bankruptcy law has passed two deliberations by the Standing Committee of the National People's Congress.

In the meantime, the Law Commission made some changes to the draft bankruptcy law.

The following discussion and quoted articles in this article are based on the draft submitted to the Standing Committee by the Finance and Economic Committee in June 2004.

As for the provisions revised by the Law Commission, we may wish to wait until the new bankruptcy law is officially promulgated before introducing and commenting on it.

1. Restrictions on management behavior during bankruptcy proceedings 1. Takeover system The draft establishes the legal institution of the administrator.

The administrator is appointed by the People's Court when accepting a case.

Among the duties of the administrator stipulated in Article 23 of the draft, the first item is to "take over the debtor's property, account books, documents, information, seals, etc.", followed by investigating the property status, deciding on internal affairs and daily expenses, hiring personnel, and making decisions.

Responsibilities such as business operations, management and disposal of property, acceptance of payments and participation in litigation.

In order to ensure the performance of these responsibilities, the draft stipulates some obligations that the management of the debtor enterprise must bear.

Article 18 of the draft stipulates that from the date the people's court accepts the bankruptcy case, the relevant personnel of the debtor shall bear the following obligations: (1) Properly keep all properties, account books, documents, materials, seals and other items occupied and managed by them; (

2) Carry out work according to the requirements of the People's Court and the administrator, and answer inquiries truthfully; (3) Attend creditors' meetings and answer creditors' inquiries truthfully; (4) Not leave the place of residence without the permission of the People's Court; (5) Not hold any other position

Directors, managers and other positions of enterprises.

The "relevant persons" mentioned here include the legal representative of the enterprise's legal person, and upon decision of the people's court, may include the enterprise's financial management personnel and main business personnel.

According to the terminology used internationally, the first two of the above obligations are "obligations to cooperate and assist", the third is "obligation to provide information", and the last two are "auxiliary obligations".

Regarding the obligation to cooperate and assist, the Draft Legislative Guide on Insolvency (2004 Draft) prepared by the United Nations Commission on International Trade Law states: “In order to ensure that insolvency proceedings can be carried out effectively and efficiently, some provisions provide for the replacement or supervision of the debtor to a certain extent.

Bankruptcy laws impose a general obligation on the debtor to cooperate with the insolvency representative and assist the insolvency representative in performing his duties, while some laws provide that an important part of the obligation to cooperate will be that the debtor shall not engage in conduct that may be detrimental to the proceedings.

Surrender control of assets and business records and books, thereby enabling the insolvency representative to exercise effective control over the insolvency estate.”[8] Regarding ancillary obligations, the document states: “Some insolvency laws are in addition to the debtor’s obligation to cooperate and assist.

, also provides for a number of ancillary obligations. These obligations (applicable to a natural person debtor, or to the officers and directors of a legal person debtor) may include, for example, not to leave his or her habitual residence (without the permission of the court or the insolvency representative) if the debtor proposes to leave or is

The forced departure of the person's place of residence requires notification to the court or the insolvency representative, all correspondence must be disclosed to the insolvency representative or the court, and there are other restrictions concerning personal freedoms. In the case of corporate debtors, restrictions on the relocation of the corporate headquarters may also be imposed, and the insolvency law may.

Requires the consent of the court or the insolvency representative. These restrictions may be extremely important in helping to avoid interruption of these ancillary obligations if the debtor leaves the place of business and the directors and officers resign after the commencement of insolvency proceedings.

The inclusion in the bankruptcy law should be consistent with its basic purpose and the general obligation to cooperate; these obligations may also be restricted by the above-mentioned relevant human rights conventions and agreements.”[9] 2. Cases in which business affairs are subject to reorganization procedures.

, the debtor's managers can be authorized to perform business affairs in two ways: first, self-management under the supervision of the manager; second, being appointed by the manager to be responsible for the business affairs of the enterprise.

Article 70 of the draft stipulates: “During the reorganization period, upon application by the debtor and approval by the People’s Court, the debtor may manage its property and business affairs on its own under the supervision of the administrator.” Article 71 stipulates: “There is no provision in Article 70 of this Law.

In such circumstances, the administrator shall exercise the powers stipulated in Article 23 of this Law. "The administrator may appoint operating managers of the debtor enterprise to be responsible for the business affairs of the enterprise."

Business affairs are more active.

This is closer to the concept of "debtor in possession" in the US bankruptcy law.