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Comment on Right of Bankruptcy Offset

Author: ChenZuoYun
Tutor: WangShiHu
School: Southwest University of Political Science
Course: Civil and Commercial Law
Keywords: Offset Right of set-off Insolvency set-off rights Exercise elements Exercise restrictions
CLC: D922.291.92
Type: Master's thesis
Year: 2010
Downloads: 125
Quote: 3
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Abstract

Offsetting refers to the mutual obligations of the parties, each in its debt offset each other's debt, so that the two sides mutual elimination of debt in the amount of peer-to-peer. Offset by civil law debt elimination, 99 and 100 of the Contract Law of China provides a legal right of set-off and conventions right of set-off, that debts due mutually and the parties, the subject of the debt category and character of the same, any party can be its own debt and other debt offset by law or in accordance with the nature of the contract shall not be offset except \the creditors owe debts to the debtor prior to the bankruptcy case acceptance, by mutual agreement, can also be offset by bankruptcy law on the right of set-off from the civil law on the right of set-off, in an extension of the area of ??insolvency law applies, , regardless of their claims with negative debt types are the same, and regardless of whether the debts with a time limit or conditions attached are in breach of the right to offset the debt owed by the debtor, the bankruptcy proceedings with the bankruptcy claims. Insolvency set-off rights plays an important role in the process of implementation of the bankruptcy law. Insolvency set-off rights derived from the civil law right of set-off, but its scope and application conditions compared with the civil law right of set-off, there are still some differences. Bankruptcy the exercise of the right of set-off must have relevant elements to ensure the exercise of the insolvency set-off rights. Legal rulings practice exercise of insolvency set-off rights to be limited, and can not be arbitrarily expanded. , In order to prevent the financial difficulties of the debtor in the bankruptcy proceedings, many creditors malicious burden of debt on the debtor or the debtor's debtor deliberately low-cost acquisition of the claims of creditors, to maintain fairness among creditors, can not fail to limit the right of set-off bankrupt. Bankrupt the exercise of the right of set-off restrictions refined five aspects, respectively, from the law, the obligation of contribution, special agreement, debt enforcement effectiveness and the principle of good faith to restrict or prohibit. The overall objective of these restrictive regulations by the parties in order to prevent the insolvency set-off rights abuse, to offset the inappropriate use of the system to avoid a violation of the principles of fairness and prejudice to the legitimate interests of others. The article also show insolvency set-off rights case in exercise of actual cases, show actual limited right of set-off in insolvency law and the consequent legal thinking.

Comment on Right of Bankruptcy Offset

Abstract

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