Addressing the Legitimacy Crisis of Ex Officio Initiation in"Execution to Bankruptcy"—From the Perspective of the Principle of Proportionality
The ex officio initiation of the"execution to bankruptcy"procedure represents an intervention of public power into private rights,and such exercise of authority should have reasonable limits.The 2022 Draft of the Compulsory Enforcement Law of the People's Republic of China introduces an ex officio model for initiating"execution to bankruptcy",which operates parallel to the"termination of the enforcement"procedure.This leads to tendencies of over-intervention and potentially infringes on litigants'right of procedural selection and wastes judicial resources,thus posing a legitimacy crisis to the ex officio initiation of execution to bankruptcy.Based on the legal relationship structure of"power-rights"in the ex officio initiation of execution to bankruptcy,the principle of proportionality is a unique perspective to conduct research on limiting the exercise of authority.Under the principles of suitability,necessity,and proportionality,it is proposed that ex officio initiation should be predicated on the party's refusal to apply"execution to bankruptcy"procedure,with the exhaustion of the debtor's solvency as the positive condition for initiation,and the lack of purpose or negative return from bankruptcy as the negative condition.Additionally,exploring the establishment of a simplified bankruptcy procedure and an integrated"execution to bankruptcy"information platform can enhance procedural efficiency,ensuring that the ex officio initiation of bankruptcy remains reasonable and legitimate.
Execution to BankruptcyCompulsory Enforcement Law of the People's Republic of ChinaDoctrine of AuthorityPrinciple of ProportionalityInterests in Bankruptcy
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