Author
Dr Ruowei Du
Organisation/Institution
Yantai University Law School
Country
CHINA
Panel
Bankruptcy
Title
New Model of Bankruptcy Supervision in China: Construction of Bankruptcy Prosecution Supervision Mechanism
Abstract
The paper will discuss the bankruptcy prosecution supervision mechanism established in China now, especially Suzhou Municipal People's Procuratorate has issued the Guidelines for Review of Bankruptcy Prosecution Supervision Cases(Trial). Due to the lack of superior legal basis and sufficient theoretical argumentation，two issues need to be resolved: why the procuratorate is needed to solve the problem of inadequate supervision over the trial of bankruptcy cases in China, and how to coordinate the relationship between the prosecutorial authority and the bankruptcy trial power. China's procuratorate is a judicial organ, and the exercise of bankruptcy procuratorial supervision belongs to the civil procuratorial supervision, but all the four areas of procuratorial supervision (criminal supervision, civil supervision, administrative supervision and public interest litigation supervision) may be involved in bankruptcy proceedings. Therefore, the first part of the paper will discuss the necessity of introducing prosecutorial supervision in bankruptcy cases, including strengthening public interest protection, overcoming the concealment of "Execution to Bankruptcy" and combating false bankruptcy litigations. It then will analyze the existing framework of the bankruptcy prosecution supervision mechanism in conjunction with the bankruptcy procedure in China including the supervision of filing and accepting bankruptcy petitions, the derivative litigations, the bankruptcy trustees’ duties, the creditors committee and other subsidiary organs, etc. The third part will compare different bankruptcy supervision models internationally (US, France, Russia, UNCITRAL and World Bank). Finally, it will propose the basic structure of the bankruptcy prosecutorial supervision mechanism in China, including the principles of bankruptcy prosecutorial supervision(equity principle, modest principle, win-win principle and regulatory principle), the scope of such supervision involving the misconduct in the bankruptcy trial procedures of people's courts, as well as various civil litigation activities related to bankruptcy(erroneous judgments that have taken legal effect, procedural violations in trials, illegal or neglectful execution) and the methods of bankruptcy prosecutorial supervision.
Biography
I am the lecturer of Yantai University Law School and the researcher of Insolvency Law Research Center of Yantai University since 2022, teaching Insolvency law, Corporation Law and Insurance Law. My preferred research area is Corporate Bankruptcy Law and Personal Bankruptcy Law. I finished my Ph.D at Beijing Institute of Technology, Law School (China) in 2022, and received my Master’s degree at Leiden University Law School(Netherlands) in 2016. And I got the bachelors’ degree from Beijing Institute of Technology, Law School in 2015. In 2020, I worked as a legal intern at Supreme People's Court of China. I have published the book “Study on Bankruptcy Trial Power—from the Perspective of Operation”(Law Press China,2024). And during last three years I have published several articles in CSSCI journals including “China’ Response to Bankruptcy Reorganization Procedure of SMEs under the New Indicators of the World Bank”(Journal of CUPL, Vol.5, 2023)“Administrator Setup in Personal Bankruptcy Proceedings”(Journal of CUPL, Vol.4, 2021) , “Problems and Solutions for Chinese Courts Using Compulsory Confirmation System on Bankruptcy Reorganization Plan” (Social Sciences Edition Journal of Beijing Institute of Technology, Vol.6, 2019). And I attended 2nd & 5th International Comparative Insolvency Symposium as the speaker and also attended INSOL Academic Colloquium & INSOL ERA Workshop in Tokyo(2023) as the speaker.
