Bankruptcy and protest

Whether the procuratorial organ can implement legal supervision of bankruptcy procedures is quite controversial. The following bankruptcy case with the largest number of creditors in the country at that time was represented by the author. It was precisely because of the intervention of the legal supervision of the procuratorial agency that it became a case that entered substantive bankruptcy procedures but failed to go bankrupt and eventually brought the bankrupt enterprise back to life and released its vitality. , Which also triggered the author's discussion on bankruptcy supervision of procuratorial organs.

1. The case

This was a case that entered substantive bankruptcy proceedings but failed to go bankrupt. It was also the bankruptcy case with the largest number of creditors in the country at that time. The respondent in this case, the second cement plant of a certain county (hereinafter referred to as the second cement plant), is a local state-owned enterprise led by the county economic committee; the applicant, the business department of the county credit cooperative union (hereinafter referred to as the county credit cooperative), It is the largest creditor of the second cement plant. On May 18, 1994, the county credit union filed an application to declare the bankruptcy of the second cement plant to the county people’s court, stating that the second cement plant had borrowed 11.008 million yuan from the applicant since December 20, 1986, all of which were overdue. , The respondent not only failed to repay the principal owed, but also failed to pay off the interest on the loan. As of May 20, 1994, the principal and interest payable totaled 18.5094 million yuan. It believed that the second cement plant caused serious problems due to poor operation and management. In order to protect his legal rights and interests, he applied for the county people’s court to declare bankruptcy of the second cement plant. The county court accepted the case on May 24. As the superior department of the respondent’s second cement plant, the county economic committee, did not apply to the court for reconciliation and rectification within the statutory period, the county court had formed a collegial panel to hear the case. A ruling declaring bankruptcy of the second cement plant was made on September 6. In this case, the author acted as the agent of a county branch of China Construction Bank (hereinafter referred to as the county construction bank), the second largest creditor of the second cement plant, because he believed that the bankruptcy ruling regarding the assets and liabilities of the second cement plant Unclear, the first meeting of creditors did not comply with legal procedures and the level of jurisdiction was wrong. The county construction bank filed for reconsideration of the bankruptcy ruling on September 16, and the county court ruled that day and rejected the county construction bank’s application for reconsideration. When bankruptcy has become a foregone conclusion, in order to realize the bank’s exemption rights, the County Construction Bank filed an application to the county court on September 28 not to use the mortgaged property as bankruptcy property and to exercise the right of priority as soon as possible. In this regard, the county court A ruling was made on October 21 that the collateral of the three mortgage loans (with principal and interest totaling more than 2.3 million yuan) of the county construction bank was key equipment on the production line of the cement plant, and the two parties did not report to the state-owned asset management department at the same level for approval when handling the mortgage. Yu Guozi Zi (1992) No. 37 document was approved, and the mortgage was deemed invalid and the application was rejected. Immediately afterwards, the bank filed a reconsideration of the ruling, but the county court did not reply. At this time, the work of the liquidation team has entered the processing and distribution stage of the bankruptcy property. When disposing of the bankruptcy property, because the liquidation team decided to sell the second cement plant as a whole to the largest creditor in this case, the County Credit Cooperative, at a lower price without the consideration of the creditors, it was strongly opposed by many small and medium creditors. The next stage of the bankruptcy property distribution plan also loses its prerequisite for approval. In the case that the creditors' meeting held only once failed to pass, the county court resolutely approved the liquidation team's bankruptcy property distribution plan. In the case of serious infringement of their legitimate rights and interests, 18 creditors including the County Construction Bank United City Railway Company filed a complaint on November 1, requesting the Municipal People’s Procuratorate to rule that the County Construction Bank’s mortgage is invalid and approve the liquidation team’s property distribution plan. Exercise the power of supervision and file a protest in accordance with the law. On November 4, the Municipal People’s Procuratorate filed a protest with the Municipal Intermediate People’s Court and reported it to the Municipal People’s Congress and the Municipal Intermediate People’s Court on the grounds that the ruling that the county construction bank’s mortgage is invalid was improperly applied and the ruling procedure for approving the liquidation team’s property distribution plan was illegal. Supported the municipal prosecutor’s protest. Under the supervision of the Municipal People’s Congress and the guidance of the Municipal Intermediate People’s Court, the county court has re-examined and determined that the county’s three mortgage rights are valid; the county court is in the process of approving the liquidation group’s property distribution plan. During the review, it was deemed that the assets and liabilities of the Second Cement Plant had not reached the level of bankruptcy, and that all employees and most creditors did not want the company to go bankrupt. In the end, the county court withdrew the ruling on the bankruptcy of the Second Cement Plant.

In this case, the determination of the effectiveness of mortgage rights is the key issue that the author's agency needs to solve. The county court found that the mortgage right was invalid based on the provisions of the Henan Provincial State-owned Assets Administration Bureau’s Yu Guozi Zi (1992) No. 37 document, which stipulated that “enterprise mortgages with its property must be approved by the state-owned assets management department”. Therefore, the author puts forward two reasons to support the validity of mortgage rights: First, the State-owned Assets Management Department’s 1994 Guozi Hanfa (1994) No. 36 document stipulates that some local state-owned Borrowing from a financial institution as a mortgage is an autonomous act within the scope of the property rights of a legal person, and the state-owned asset management department should not intervene beyond its authority. This document was issued in response to administrative measures for illegally intervening in the autonomous behavior of enterprises by subordinates, with the purpose of correcting illegal acts of subordinates. Therefore, the illegal acts performed by subordinates in the past should be invalid from the beginning, and the issue of retroactivity is not involved here. Second, the "Decision on Several Issues Concerning the Establishment of a Socialist Market Economic System" adopted by the Third Plenary Session of the 14th Central Committee of the Communist Party of China in 1993 clearly stated: "Enterprises have all legal person property rights formed by investors including the state." The government does not directly intervene in the production and business activities of enterprises". Therefore, the Yu Guozi Zi (1992) No. 37 document lacked existing legal and policy basis and should be invalid from the beginning. The county court finally adopted the agent’s opinion and determined that the county construction bank’s mortgage was valid. This is one of the focuses of this case. The second focus of this case is the issue of protests by the procuratorate.

After investigation, the assets and liabilities of the second cement plant in this case did not reach the level where bankruptcy should be declared. However, the county courts dominate the entire bankruptcy trial process, the bankruptcy trial process lacks external supervision, small and medium creditors lack remedies, and stakeholders lack A channel to effectively express one’s own legal demands and prevent procedures from proceeding incorrectly. When the legal rights and interests were about to suffer substantial and irreversible damage, the prosecutor’s timely protests saved many small and medium-sized creditors, and the Second Cement Plant’s subsequent resurrection and Vigorous development has laid a vital foundation. Therefore, the prosecution's protest became a typical case of this case.

Before this case, the court had not accepted the Procuratorate’s protest against bankruptcy cases, and the Procuratorate had not filed a protest against bankruptcy cases; after this case, the court no longer accepted the Procuratorate’s protest against bankruptcy cases, and the Procuratorate no longer filed a protest against bankruptcy cases. This case became The Procuratorate protests bankruptcy cases and implements exceptions for procuratorial supervision of bankruptcy procedures.

Whether the procuratorial agency can implement procuratorial supervision over bankruptcy procedures has always been a controversial issue. In current bankruptcy practices, the courts have a negative attitude towards the supervision of procuratorial agencies. So, is it necessary for procuratorial agencies to participate in bankruptcy? What about the program? The author thinks it is necessary.

2. Analysis of the necessity of procuratorial organs participating in bankruptcy proceedings

The nature of procuratorial organs and the characteristics of bankruptcy procedures determine that procuratorial organs are not only necessary, but should also participate in bankruptcy procedures. At the same time, foreign legislation has reinforced this necessity.

(1) The nature of the procuratorate

Article 129 of my country's Constitution stipulates: The People's Procuratorate of the People's Republic of China is my country's legal supervision agency.

The supervisory function of the procuratorate is an inevitable requirement for power allocation. Lord Acton, a British intellectual historian, believes that power leads to corruption, and absolute power leads to absolute corruption. It is based on the belief in this view that there is a power structure that checks and balances each other and restricts each other in the process of power allocation in modern society. The legal supervision of the procuratorate mainly includes legal supervision, investigation supervision, and trial supervision. Among them, the investigation supervision is directed to the investigation activities of the public security organs, and the trial supervision is directed to the litigation activities of the judicial organs, namely the people's courts. According to the nature of trial activities, trial supervision can be divided into supervision of criminal trial activities, supervision of civil trial activities and supervision of administrative trial activities. As the main body of the prosecution in the prosecution and defense trial, the procuratorate can directly participate in criminal trials. It can supervise through court trials and effective judgments. In the process of civil and administrative trials, the procuratorate is not a party to the trial. The supervision of activities can only stay in the single form of protesting against effective judgments after the fact. As a result, in judicial practice, the procuratorate's supervision of criminal trial activities is much stronger than that of civil trial activities, which weakens the procuratorate to a certain extent. Civil trial supervision. In the process of civil trials, the weakening of procuratorial supervision will inevitably expand the power of the court due to the lack of external constraints. The imbalance of the power of the prosecution and the law will greatly increase the probability of judicial injustice. This is not the way to build a socialist country under the rule of law. To build a harmonious society. In order to balance the power balance between the procuratorate and the court in the judicial process, and build a power structure of mutual checks and balances, the procuratorate needs and must participate in the civil trial procedures and supervise civil trial activities, and from the current situation, the intensity of supervision can only be strengthened Cannot be weakened.

The participation of the procuratorate in the bankruptcy process is an inevitable manifestation of its civil trial supervision function. Article 14 of my country's "Civil Procedure Law" stipulates that the People's Procuratorate has the right to exercise legal supervision over civil trial activities. Bankruptcy procedure is a mixed procedure of civil trial procedure and civil execution procedure. Bankruptcy declaration is the act of the court declaring bankruptcy of the debtor according to law, and its nature is judicial judgment. Bankruptcy liquidation is the specific execution of the bankruptcy ruling announced by the court, which has the characteristics of execution procedures. Since it is the court’s bankruptcy declaration that is decisive for the fate of a bankrupt enterprise, the author believes that the bankruptcy procedure is still a civil trial activity in general, and to be precise, it should be a special civil trial activity. . Since the bankruptcy procedure is a civil trial activity, the procuratorate has the right to supervise the civil trial activity, and it should naturally have the right to exercise legal supervision over the bankruptcy procedure. Therefore, the participation of the procuratorate in the bankruptcy procedure is an inevitable manifestation of its civil trial supervision function.

In summary, the nature of the legal supervision agency of the procuratorate determines that it is necessary and should participate in the bankruptcy proceedings.

(2) Features of bankruptcy proceedings

Bankruptcy means that when the debtor is unable to pay off the due debts, in order to satisfy the creditor’s reasonable and reasonable request for repayment, under the guidance and supervision of the court, the debtor’s total assets are subject to a liquidation procedure for the purpose of distribution. The price of bankruptcy is the termination of the debtor’s business rights and capacity. In order to end the aftermath of bankruptcy as soon as possible, avoid protracted litigation, and avoid greater losses to creditors, bankruptcy proceedings can only be subject to appeal, except for inadmissibility and rejection of bankruptcy applications. Other rulings are final rulings. The people's court rulings on substantive disputes concerning the creditor's rights and property of the bankrupt debtor shall be final and the parties shall not appeal. In other words, the end of the bankruptcy proceedings will be permanent and irreversible. It is difficult to correct the error through retrial procedures, and there is no possibility of restoring the debtor’s business rights and capacity through execution. Therefore, the bankruptcy proceedings need to establish a timely , An effective error correction mechanism, and the most direct, effective, and thorough subject that can make this error correction is none other than the Procuratorate. That is to say, the characteristics of the final ruling of the ruling of the bankruptcy proceedings determine that the procuratorate has the necessity to participate in the bankruptcy proceedings in a timely and effective manner.

Bankruptcy is a passive debt elimination method adopted when the debtor's financial situation deteriorates under the conditions of the commodity economy. In order to prevent and reduce the negative impact that bankruptcy may bring to creditors, debtors, and the social economy, and try to save companies that have the hope of recovery, the bankruptcy procedures of the modern bankruptcy law include more prevention and reorganization content to avoid bankruptcy as much as possible Liquidation ensures that the interests of creditors are maximized. Therefore, various countries have established bankruptcy prevention systems such as bankruptcy reconciliation and rectification in their own bankruptcy laws. Article 70 of my country's "Enterprise Bankruptcy Law" stipulates that the debtor or creditor may directly apply to the people's court for reorganization of the debtor in accordance with the provisions of this law. Where a creditor applies for bankruptcy liquidation of the debtor, after the people’s court accepts the bankruptcy application and before the debtor is declared bankrupt, the debtor or the investor whose capital contribution accounts for more than one-tenth of the debtor’s registered capital may apply to the people’s court for reorganization. Article 95 stipulates that the debtor may directly apply to the people's court for settlement in accordance with the provisions of this law. The existence of the bankruptcy prevention system has increased the technicality of the bankruptcy trial procedure, making the bankruptcy procedure more complicated than ordinary civil litigation. This will inevitably increase the possibility of deviations in the people’s courts in the trial process, in order to prevent errors in a timely and effective manner. The emergence of this requires the participation of the procuratorate. Therefore, the complexity of the bankruptcy procedure determines the necessity for the procuratorate to participate in the bankruptcy procedure to prevent wrongful cases.

Bankruptcy is a last resort system. The results of bankruptcy cases often cause extremely heavy losses to creditors. Therefore, under this extraordinary system, the conflict of interest between all stakeholders is very intense, and some people often resort to bankruptcy or Taking advantage of bankruptcy to seek improper benefits or attempt to achieve other criminal purposes. This case was formed after the Mengxian Credit Cooperative tried to take over the Mengxian Second Cement Plant at a low price through bankruptcy after three months of investigation. The maximum satisfaction of the biggest creditor’s own interests in this case was based on the damage to the interests of many small and medium creditors. It was the timely protest of the People’s Procuratorate of Jiaozuo City that saved the legitimate rights and interests of many small and medium creditors. Therefore, the frequent occurrence of illegal and criminal acts in bankruptcy procedures determines that the procuratorate has the need to participate in the bankruptcy procedures, as well as early detection and effective crackdown on the illegal and criminal acts that lead to bankruptcy and bankruptcy procedures.

In the absence of a personal bankruptcy system in our country, enterprises have become the sole subject of bankrupt debtors. As a kind of social organization, the bankruptcy of an enterprise often involves the interests of a specific and unspecified majority, and has a strong social public interest color. This case was the “bankruptcy case” with the largest number of creditors in the country at that time. There were 788 creditors, 277 employees, and more than 1,000 stakeholders. If the bankruptcy of the second cement plant, which has not reached the level of bankruptcy, is left alone, the result will not only It will cause serious losses to the legitimate interests of all eight hundred creditors. More importantly, the vital interests of nearly three hundred employees will be severely damaged. This will pose a great hidden danger to social stability and the public welfare is obvious. In order to protect the legitimate rights and interests of these thousands of people, representatives of the public interest, the Procuratorate, are obliged to participate. Therefore, the social welfare characteristics of bankruptcy procedures determine that the procuratorate must participate in the bankruptcy procedures in order to effectively protect the legitimate rights and interests of stakeholders.

In summary, because the ruling in the bankruptcy procedure has the characteristics of a final ruling, coupled with the complexity of the bankruptcy procedure, the nature of social welfare, and the frequent occurrence of illegal and criminal activities, the procuratorate is determined to be the legal supervision agency of our country and the public interest. Representatives, if necessary, should also participate in the bankruptcy proceedings.

(3) Foreign legislation

The bankruptcy legislation of many countries and regions in the world has continuously strengthened the state’s intervention in the bankruptcy process by empowering the prosecutor to participate in the bankruptcy process. Among them, the French bankruptcy law has the strongest degree of state intervention. In order to maintain the survival of the enterprise, the current French bankruptcy law gives prosecutors the power to fully intervene in the bankruptcy procedure: the prosecutor has the power to sue or appeal to the court during the preventive procedure; it can request the judge to change the leader of the enterprise due to the survival needs of the enterprise. Accept the conditions of the corporate reorganization plan; there are also the power to require the court to change the judicial administrator, and so on. In other civil law countries, such as Germany, prosecutors also play an important role in bankruptcy proceedings. In common law systems, such as the United States and Hong Kong, at any stage of the bankruptcy proceedings, prosecutors can intervene in the bankruptcy proceedings as long as they deem it necessary to understand the situation and provide opinions.

It can be seen that the participation of prosecutors in bankruptcy procedures has become a common practice in all countries in the world. This general rule does not necessarily lead our country to affirm and strengthen the intervention of prosecutors in bankruptcy procedures, but at least it can convey the message that most countries recognize prosecutors. The necessity of participating in the bankruptcy process has been institutionalized. Of course, our country is also aware of this necessity, but due to various reasons, procuratorial organs have always been obstacles to participating in bankruptcy procedures.

3. Analysis of obstacles to the participation of procuratorial organs in bankruptcy proceedings

In the practice of bankruptcy in my country, the main reason for the court's negative attitude towards the supervision of the procuratorial organ is the two replies of the Supreme People's Court. In 1997, the Supreme People’s Court stipulated in the “Approval on the Acceptance of the Prosecution against the Ruling on the Termination of Corporate Bankruptcy and Debt Repayment Procedures” (hereinafter referred to as the “97 Approval”): The procuratorate has concluded the procedures for the bankruptcy and debt repayment of corporate legal persons made by the People’s Court. There is no legal basis for protesting against the ruling. If the procuratorial organ raises a protest against the aforementioned ruling, the people's court shall notify it not to accept it. The other reply is the Supreme People’s Court’s "Reply on How to Deal with Issues in the Insolvency Proceedings or the People’s Procuratorate on the People’s Court’s Decision on the Priority of Creditors’ Compensation Application for Retrial or Prosecution" (hereinafter referred to as "96 Reply"). The reply pointed out that in the bankruptcy procedure, when the creditor exercises priority based on the legally effective judgment or mediation statement of the people’s court to repay the creditor’s principal and interest with the mortgage, the people’s court that accepted the bankruptcy case cannot change the effective judgment in any way Or the content of the mediation statement does not need to be approved by the ruling. If the effective legal document on which the creditor exercises the priority is indeed wrong, the people's court that issued the judgment or mediation or its superior people's court shall conduct a retrial in accordance with the trial supervision procedures. If the people's court hearing a bankruptcy case changes the content of the effective legal document by way of ruling, the people's court shall correct it according to law. However, the party concerned cannot apply for a retrial for this ruling, and it does not involve the issue of the People's Procuratorate's protest. If the People's Procuratorate insists on the protest, the People's Court shall notify the decision not to accept it.

Some people believe that these two replies essentially show that the procuratorate has no right to protest in the bankruptcy proceedings. This has also become the main reason why the court rejects procuratorial supervision in the bankruptcy proceedings. According to the usual understanding, these two replies are only for the “decision declaring the termination of the corporate legal person’s bankruptcy and debt repayment procedures” and the “decision to change the effective judgment or mediation document on which the creditor exercises priority” in the bankruptcy proceedings. Whether it can protest the judicial interpretation. Regarding the previous replies, since it was only aimed at the "decision announcing the termination of the bankruptcy and debt repayment procedures for corporate legal persons", that is to say, the procuratorate has no objection to most of the rulings made by the court in the bankruptcy proceedings from the beginning of bankruptcy to the end of the bankruptcy and debt repayment procedures. It shows that the court did not make any major mistakes in the entire bankruptcy proceedings. Then, what caused the prosecutors’ office to protest against the “decision declaring the termination of the corporate bankruptcy and debt repayment procedures” can only be insufficient to deny the minor errors in the entire bankruptcy trial procedures. Absolute fairness and justice to redistribute the vested interests of employees and creditors of many bankrupt enterprises will undoubtedly be a complex task that seriously deviates from the principle of benefit advocated by the socialist market economy and does not pay for the gains. The ultimate damage is precisely fairness and justice. Therefore, , It is in line with the concept of social fairness and justice to not allow the procuratorate to file a protest against the "ruling announcing the termination of the bankruptcy and debt repayment procedures of an enterprise legal person". The latter reply was directed at the request of the Sichuan Provincial Higher Court. In this reply, the object of the procuratorate’s protest was the court’s ruling to alter the effective judgment or mediation on which the creditor exercised priority for compensation. This ruling was the result of the ultra vires of the people’s court that conducted the bankruptcy trial, although it was related to bankruptcy. The procedure is related, but it does not belong to the same litigation legal relationship with the ongoing bankruptcy procedure. Therefore, if the judgment or mediation document has no errors in the judgment or mediation decision made by the court, the prosecutor’s office can submit an application to the court. The first-level court makes judicial recommendations, recommending the higher-level court to correct or request the court to correct; if the effective judgment or mediation statement is indeed wrong, the procuratorate may file a protest against the higher-level court of the people’s court that issued the effective judgment or mediation statement , And cannot take the method of protesting in the bankruptcy trial proceedings to resolve errors in other litigation legal relationships.

Therefore, these two replies of the Supreme People's Court are only to maintain the smooth progress of the bankruptcy procedures, and do not deny the prosecution and supervision of the bankruptcy procedures by the procuratorate. Of course, the Supreme People's Court has no right to deny either. Since the Constitution of our country gives the procuratorate the power to conduct legal supervision, the "Civil Procedure Law" also gives the procuratorate the power to conduct legal supervision over civil litigation activities, and the highest judicial organ has not blocked the procuratorate’s procuratorial supervision of bankruptcy procedures. So what caused the prosecution? Can supervision not be used in bankruptcy proceedings? The author believes that a very important reason is that my country lacks a legal document that specifically regulates the procuratorate's procuratorial supervision of bankruptcy procedures. When there is such a legal document that specifically regulates the procuratorate's procuratorial supervision of bankruptcy procedures, it is only feasible for the procuratorate to conduct procuratorial supervision of the court during the bankruptcy procedure and the court accepts procuratorial supervision. At the same time, based on the limitation of procuratorial supervision and the purpose of ensuring the smooth progress of the bankruptcy trial, procuratorial supervision cannot and should not involve all aspects of the bankruptcy trial. That is to say, the participation of procuratorial organs in the bankruptcy trial should be restricted to a certain extent.

4. Scope of the procuratorial organ's participation in bankruptcy proceedings

Chinese courts usually handle bankruptcy cases in the form of rulings. Therefore, the way that procuratorial organs participate in bankruptcy proceedings is to protest the rulings. Procuratorates should participate in the bankruptcy proceedings, but not every ruling in the bankruptcy proceedings, the procuratorate can protest, otherwise, the bankruptcy proceedings will not proceed smoothly, and the legitimate rights and interests of the parties will therefore be difficult to be protected. The author believes that what the procuratorate can protest must be rulings involving national interests, social public interests, or the major interests of the parties. Specifically, it includes rulings on bankruptcy declarations and the court’s decision if the bankruptcy property distribution plan is not approved by the creditors’ meeting for the second time. The ruling on the confirmation of the property distribution plan and other rulings that have a significant impact on the national interest, social public interest or the vital interests of the parties.

Ruling on bankruptcy declaration. The court's declaration of bankruptcy on the debtor means that the bankruptcy case has definitely entered the substantive stage of the liquidation process. Unless there are extremely special circumstances (such as this case), the suspension or resumption of the bankruptcy process will no longer occur. The ruling of the people's court declaring bankruptcy of the enterprise shall take effect from the date of the declaration. After the ruling takes effect, the debtor will inevitably fall into bankruptcy: corporate property is distributed and subject qualifications are eliminated; with the debtor’s bankruptcy, the creditor’s claims become bankruptcy claims, and there are uncertainties in whether the debtor can be repaid and the extent of repayment. , The interests will be seriously damaged; for enterprise employees, after the enterprise is declared bankrupt, the labor contract between the enterprise employees and the enterprise will be terminated, and the placement of employees has become a problem faced by the government and an issue affecting social stability and harmony. , Especially when the scale of the bankrupt company is large, such as this case. Once the court ruled that the enterprise declared bankrupt has not reached the bankruptcy standard, it will damage not only the interests of creditors and enterprise employees, but also the local economy will be greatly affected, and since the parties cannot appeal the ruling, the damage will be irreversible. of. It can be seen that the correctness of the ruling in the bankruptcy announcement is directly related to whether the public interest can be safeguarded. When the bankrupt enterprise is a state-owned enterprise, the correctness of the ruling in the bankruptcy announcement is also directly related to the interests of the country. Therefore, the ruling of the bankruptcy announcement It has a very important position in the rulings made in the bankruptcy procedure, which is related to the national interest and the public interest. For the wrong bankruptcy announcement ruling, the procuratorial organ has the right to protest.

Ruling on the confirmation of the property distribution plan. Article 115 of my country's "Enterprise Bankruptcy Law" stipulates that the administrator shall draft a bankruptcy property distribution plan in a timely manner and submit it to the creditors meeting for discussion; after the creditors meeting has passed the bankruptcy property distribution plan, the administrator shall submit the plan to the people's court for approval. It can be seen that the power to decide whether to approve the bankruptcy property distribution plan is in the creditors’ meeting. The people’s court has only recognized power, and the law does not give it the power to decide. The Supreme People’s Court "Regulations on Several Issues in the Trial of Enterprise Bankruptcy Cases" (hereinafter (Referred to as the "Bankruptcy Regulations") Article 44 stipulates: If the liquidation group's property distribution plan is not passed after two discussions at the creditors meeting, the people's court shall rule in accordance with the law. The "Corporate Bankruptcy Law" does not limit the number of times creditors can exercise their voting rights on the bankruptcy property distribution plan through creditor meetings. The appearance of the two veto rights of creditors is based on the "Bankruptcy Regulations" formulated by the Supreme Court to improve trial efficiency. There is the suspicion of judicial (interpretation) power interfering with the legislative power. On the other hand, there is also the suspicion of public power interfering with private rights. The two aspects are interrelated. The legislative power gives creditors the right to decide whether the bankruptcy property distribution plan is passed. Judicial (interpretation) The power also gives the court the power to rule and confirm the bankruptcy property distribution plan in the case that the creditors’ meeting has not passed the two discussions. The legislative power as the source of power is higher than the judicial (interpretation) power as the source of power, but the judicial (interpretation) The exercise of power is for the purpose of avoiding prolonged delays in the case, which is completely reasonable. In other words, the intervention of public power on private rights is legitimate, but it does not mean that legitimate intervention can be unchecked. . The bankruptcy property distribution plan is the most fundamental and direct motivation for the majority of creditors to participate in bankruptcy distribution. The correctness of the exercise of the court's public power is directly related to the vital interests of the majority of creditors, and the legal supervision agency-the procuratorate is required as the restraining force of the court's ruling public power Participate in it to effectively protect the major interests of creditors.

Since bankruptcy cases are of various kinds, it is difficult to exhaust the specific scope of the procuratorial organ’s participation in the bankruptcy proceedings on the one hand, and on the other hand it is easy to confine the scope of the procuratorial organ’s participation in the bankruptcy proceedings. Or rulings that have a significant impact on the vital interests of the parties.

V. Conclusion

As China’s legal supervision agency, the procuratorial agency, as a representative of the national interest and social public interest, needs and should participate in the bankruptcy process. By restricting the court’s power, the procuratorial agency can not only protect the vital interests of the parties, but also protect bankruptcy. The legitimate interests of the enterprise may even bring the bankrupt enterprise back to life and flourish. This case is an example.