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下面为大家整理一篇优秀的essay代写范文- British bankruptcy law，供大家参考学习，这篇论文讨论了英国的破产法。在英国司法实践中，判断一家公司是否破产，主要是通过现金流测试法和资产负债表测试法。现金流测试法指的是在某一时间点，如果公司不能清付到期债务，则被判定为破产。而资产负债表测试法，如果法院认定公司的资产不抵公司的债务，那么将被判定为破产。公司一旦被判定为破产，就可以依据英国《破产法》进入相应的公司拯救程序。《破产法》第214条对破产公司的董事提出了行为指引。

In the context of the financial crisis, the high salaries of the executives of large groups have been criticized. The author introduces section 214 of the UK bankruptcy code and section 10 of the company director disqualification act, and analyzes their contribution to the culture of corporate salvation.

In countries with a more developed culture, bankruptcy does not mean liquidation. In British judicial practice, there are generally two ways of judgment: one is the cash flow test method, and the other is the balance sheet test method. According to method 1, at a certain point in time, if the company fails to pay off the debts due, it is judged to be bankrupt. The disadvantage of this approach is that the expected earnings of the company cannot be taken into account. For example, a company may be insolvent at a certain time and be judged as bankrupt, but the company can obtain the return that makes it profitable in the short term thereafter. At present, the common practice is the second test method. If the court determines that the assets of the company do not cover the debts of the company, the company will be judged bankrupt.

Once a company is judged bankrupt, it can enter the corresponding company rescue procedure under the UK bankruptcy law. Section 214 of the bankruptcy code provides guidance on the conduct of directors in a bankrupt company.

The level of decision-making of company directors will have a significant impact on the success of the whole company's rescue. Directors who are prudent, diligent, honest and have a high level of operation are more likely to lead the company out of difficulties in the rescue process, so as to benefit more groups related to the company's interests, and at the same time may promote the increase of social wealth. Of course, the reasons for each company to go into trouble are different. It is impossible for legislation to require every company operator with a high standard. The ideal result of legislation can only be that the law provides a minefield for the directors of these companies in trouble and provides a minimum code of conduct for the directors through the law. If, after the bankruptcy of a company, the directors fail to meet the minimum requirements of the legislation, then these company directors will incur personal liability and pay for the loss of the company. The personal responsibility of company directors seems to break through the principle of corporate limited liability, but such a break has a positive effect on regulating the economic order and increasing the assets of bankrupt companies, and at the same time, it also rings the alarm bell for other company leaders. If company directors become more accountable to the company, the chances of the plan's success in the corporate rescue will certainly increase.

Generally speaking, according to article 214 of the bankruptcy law, when a company director fails to put the bankrupt company into the supervision, takeover or liquidation process in a timely manner, but continues to conduct transactions on the premise of harming the interests of creditors and shareholders, it is highly likely that the director will incur personal responsibility for improper decisions.

With regard to section 214 of the UK bankruptcy code, the following should be understood: improper operation does not mean that improper decisions made by company executives make the company enter into the state of insolvency, but that the directors fail to take effective measures to minimize the losses of creditors after the company enters into difficulties. Among the four conditions listed above that constitute improper operation, first of all, in terms of how to judge a company as insolvent, in the relevant British laws, it is generally determined by understanding the financial situation reflected by the company's balance sheet. Secondly, before the end of the company for a period of time, it limited the improper operation of the time stage; Finally, how to judge the company directors have done their best to minimize the loss of creditors. According to section 4 of section 214 of the bankruptcy code, "the directors of a company shall know or be aware of the condition of the company concerned and shall take such other reasonable measures as are reasonable. A company director should have the common attempts, skills and experience of a reasonable and diligent person who can be reasonably expected to become a company shareholder; At the same time, he has the reasonable knowledge, skills and experience that can be expected from the background of the directors of the company. British legal scholars generally believe that section 214 of the bankruptcy code is a relatively objective test standard compared with other similar British laws before it. Court will according to this law, in the face of an alleged improper management of company directors, through the evaluation of another reasonable diligence the level of the company director should possess, and to evaluate the problem of the background of the director himself for its reasonable judgment level, combination of both, to determine after the company's balance sheet insolvency case company directors have suspected of improper operation. For example, the financial director of a company should have higher requirements on financial management than the financial director of the company. This makes it easier to distinguish between the responsibilities of different directors in a company. Similarly, such a provision for the court is more operable, requiring the "general knowledge, skills and experience" of directors of large companies and even multinational groups to be much higher than that of small companies. In addition to section 214, the UK bankruptcy code sets mandatory requirements for directors, such as proper custody of the company's accounts and keeping them clear.

According to the regulation of article 214, if the company directors in the UK want to avoid personal responsibility, they must pay attention to the company's financial data and make a reasonable judgment based on this fact. When the company is insolvent and there is no reasonable expectation that the company will avoid liquidation, they should carefully make the decision to increase the company's debt. So if company directors do have a "reasonable expectation" that the company will avoid liquidation and continue to trade in insolvency, only to have a disappointing outcome, can company executives be exonerated with the good intentions for which they made their decisions? This becomes a question that must be answered. The bankruptcy code, however, does not give an answer. In the case of Re Produce Marketing Consortium Ltd., Mr. David is a director of a company that is in the throes of insolvency and is convinced that the company will Produce a deal to get itself out of trouble. The evidence also suggests that Mr Davis may have had good intentions in continuing the deal for the benefit of his creditors, but that this has left them with new debts. Judge knox. J, who heard the case, took a negative view on whether the company's directors could be exonerated for improper business operations under such circumstances. In practice, there is still such a situation: the company director informs the creditors of the company's predicament, and all creditors agree and support the company director's claim to continue the transaction. In this situation, the company director will not be responsible for improper operation. But if even small creditors do not agree to the plan to proceed with the deal and go to court to resolve the matter, the directors of the company may still incur penalties for improper conduct under section 214 of the bankruptcy code. This is because the large creditors will generally support the company directors to continue to operate with higher returns as the condition, while the interests of the small creditors will become the key protection object of article 214.

After knowing the situation of the company, according to the requirements of article 214, the company's executives should take all possible measures to reduce the losses of creditors and avoid personal liability. There are no statutory rules on how to decide what to do with each step, and there are no similar reports in case law. British scholars believe that the relevant legislation should add guiding provisions. Due to improper management terms is for the purpose of the company is insolvent, avoid the company continues to produce the debt, stop operation immediately after this happens, of course, is the most effective way, but in some cases, simply stop trading is not conducive to maximizing the interests of the company, if simply stopped trading at this moment, can also lead to improper trading. R. gutierrez OODE "bankruptcy law" is a famous scholar in Britain as director provides some reference, these Suggestions include: ensure that the company timely update, where possible, listening to the advice of experts on remedial measures, organize the business review, applying to the court supervision order or invite a floating mortgage bank supervisors to participate in the company management, regular remedy to the company board meeting for discussion. These Suggestions have practical implications for company directors. If the directors of the company in question can seriously consider and implement these measures, it can be an important reason to avoid personal responsibility in the future. At the same time, the experts also suggest that the directors should keep records during the meeting of the board of directors for future court evidence, because the burden of proof to prove that all measures have been taken is borne by the directors of the relevant companies.

Another criticism of section 214 by insolvency experts is that there are only a limited number of people who can bring a suit under it. Article 214 provides that only the liquidator can request the court to issue a compensation order, while in practice, the liquidator cannot initiate the legal action because of insufficient financial support. Insolvent companies are rarely likely to have enough money to take legal action, and liquidators can only negotiate with creditors in the hope that they will give them the money to do so. Large corporate creditors -- Banks -- generally have little support for this legal action because they have other legal avenues to clear their claims, while smaller creditors are more willing than able.

In practice, the financial statements of poorly managed companies are not properly kept, and the absence of relevant financial documents makes it more difficult to bring legal proceedings. This is regulated by section 204 of the Irish companies act. If the company's accounts are not properly kept, the senior officers of the company are liable for the debts of the company.

If the company director is judged to have personal responsibility, the court will make targeted compensation decree, the nature of the compensation decree is not to punish the director himself, but to compensate the company's losses. So, the amount of compensatory decree is the property loss that brings to the company according to improper management will decide. As for the distribution of compensation amount, relevant scholars also hold different views. The first is that the compensation made by the directors of the company concerned cannot be attributed directly to any general creditors, but must be attributed to the property of the company. But in the case of Re Produce Marketing Consortium Ltd, the judge held that the floating mortgagee of the company has the right of first claim against the compensation of the directors of the company. However, r.inodes believes that compensation should first be used to pay off unsecured creditors, because unsecured creditors are generally in a weak position. In the author's opinion, the large creditor similar to the bank can generally get priority payment according to the mortgage right. Unsecured creditors are usually employees and other vulnerable groups, and the law should be in the spirit of care, so that unsecured creditors can be partially limited compensation.

The improvement of section 214 is also that the directors behind the act cannot escape liability for improper conduct, and that any director found guilty of improper conduct under section 214 cannot escape other penalties under the company directors disqualification act. According to the provisions of article 10, paragraphs 1 and 2, of the act: "if, in accordance with section 214 of the bankruptcy code, the court determines that a director is liable to indemnify the company, it may, even if no application is made, make a dereliction of duty order against the director at the same time as it deems necessary; Second, the maximum statute of limitations for disqualification is 15 years." This means that the director not only has to compensate for the company's losses, but also cannot participate in the management of other companies for a long time. In Re Purpoint Ltd's case, the directors were told that the company was nearly insolvent and would incur personal liability if the deal went ahead. However, the directors decided to go ahead with the deal and the debt eventually reached 63,000 at the end of the company's liquidation. The judge who heard the case ruled in dereliction of duty at the same time as the award of compensation, and the director was not allowed to participate in the management of the company for two years. Relevant scholars believe that while making dereliction of duty award and compensation award, the court should also publicize relevant information of dereliction of duty directors through different forms in relevant reports, which will serve as an example to other company directors. Ten years after the corporate malpractice act was introduced, 58% of British directors still know little about it. Therefore, how to effectively increase the openness of these laws is an urgent problem to be solved.

Improper operation clause and disqualification clause of directors have a positive effect on improving the standard of conduct of directors after the company is in trouble. In Britain, where the company rescue procedure is relatively developed, the law requires that the company's directors should pay great attention to the bankruptcy of the company, and then take prudent measures, including actively entering the rescue procedure, to at least reduce the possibility that the company's debt continues to increase. Although there is still some room for improvement in article 214 of the UK bankruptcy law, it still has great reference significance for China, which continuously revises the bankruptcy law and plays a positive role in saving corporate culture.

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