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新《破产法》以专业化、市场化的管理人制度取代了原有的《企业破产法(试行)》中的清算组制度。世界各国破产法中,就选任主体的确立上,主要由法院选任、债权人会议选任、债权人会议选任和法定权力机关指定相结合以及行政机关选任四类。选任方式的差异,其实体现的是破产程序指导理念的差别。自治主义赋予了当事人充分的处分权,职权主义则更强调法官在程序中的主导地位。每种方式各有特点与利弊,需要我们在比较的基础上,结合自己的需要加以甄别与借鉴。
The new “Bankruptcy Law” replaced the liquidation group system in the existing “Enterprise Bankruptcy Law (Provisional)” with a professional and market-based administrator system. In the insolvency laws of various countries in the world, the establishment of the elected subject mainly consists of the election of the court, the election of the creditors ’meeting, the election of the creditors’ meeting and the designation of the statutory authority, and the election of the executive authorities by four categories. The differences in the methods of election actually reflect the differences in the guiding concepts of insolvency proceedings. Autonomy gives the parties full powers of disposition, while the power of doctrine more emphasizes the judges in the process of dominance. Each way has its own characteristics and advantages and disadvantages, we need to compare on the basis of their own needs to be screened and used for reference.