论我国破产管理人选任的立法失误及其纠正

:我国现行破产法关于清算组的选任制度与当前政治体制改革方向不相符合 ,其组织形式与其职能不相符合 ,存在严重失误。其主要原因是计划经济体制下形成的对经济生活行政管理的思维方式的影响以及对破产法性质认识的偏差。为适应社会主义市场经济发展的需要 ,完善破产立法 ,应将清算组改为破产管理人。国外立法中管理人原则上由自然人个人充任的规定难以适应复杂的破产清算工作要求。能够进行市场经济行为的法人和合伙事务所可以成为破产管理人 ,这有利于提高清算管理的质量 ,健全破产清算程序的制约机制。破产管理人应由人民法院指定产生 ,但债权人会议可依法定程序要求予以更换。破产管理人的酬金应有别于人民法院的案件受理费和律师的诉讼代理费 ,由人民法院在法定范围内确定

On the Legislative Errors as well as Remedies in the Selection of Bankruptcy Administrator in China

The liquidation group selection system of our current bankruptcy law is not in compliance with the direction of the present political system reform, as is shown by the inconformity between the organization form of the liquidation group and its function. This ia a serious error, which reflects a mode of thinking over economic life administration under planned economy system and a deviation in realizing the nature of bankruptcy law. In this article, the author proposes that liquidation group be changed into bankruptcy administrator. In foreign legislations, administrators are, in principle, served by natural person. However, this cannot meet the requirements of the complicated liquidation work. In China, administrators can be served by competent legal persons as well as relevant offices, so as to improve the quality of liquidation administration and better the check and balance system on bankruptcy liquidation procedure. Administrators should be selected and set by the people's court, however, they can be substituted by creditor's meeting under legal procedures. The fees paid to the administrators should be established by the people's court according to law and should be distinguished from the fees paid to the court as well as lawyers.