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On the System of Bankruptcy Revocation Rights

Author: JiangWeiDong
Tutor: ZhaoJingTao
School: Jilin University
Course: Legal
Keywords: Bankruptcy revocation Constituent elements Conditions for the exercise
CLC: D922.291.92
Type: Master's thesis
Year: 2011
Downloads: 101
Quote: 0
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Abstract

Since its implementation in June 1, 2007, the \The new law, compared with the original Enterprise Bankruptcy Law (Trial) absorbed the advanced experience of foreign bankruptcy legislation, the establishment of a the insolvency administrator reconciliation and reconstituted Bankruptcy Law. Bankruptcy the right to revoke system's design, to clarify the process of the implementation of the old law theorists and Practice profession existence of fuzzy understanding is divided into a system of invalid acts of bankruptcy and bankruptcy revoke the right system effectively combat the bankruptcy avoiding the debt behavior, maintaining the debtor's responsibility of property, equal protection of the creditor and debtor interests of all parties, reflects the fairness and efficiency of the bankruptcy law, equality and integrity to safeguard the healthy development of China's market economic order. In this paper, the concept of the right to revoke the bankruptcy, the nature of discourse, and then analyzes the constituent elements of the Bankruptcy revocation and exercise conditions; through introduction to revoke the right of the evolution of the system and the legislative status quo at home and abroad bankruptcy, Bankruptcy revocation system necessary to explain and propose how to improve the proposal. The paper is divided into four parts. The first part, first define the meaning of the Bankruptcy revocation. Bankruptcy revocation after the start of the bankruptcy proceedings, the Manager request the court to revoke the debtor in a bankruptcy petition be accepted before the critical period of fraud misconduct to harm the interests of creditors rights. Bankruptcy revocation derived from Roman law, is established to protect the interests of creditors, is based on fairness and justice, good faith legal principles. Second, further analysis of the differences and relations between the right to revoke the right to revoke the bankruptcy law and civil law, contract law, explicitly bankruptcy the revocation system to continue the course of development, as the theoretical basis of the article begins. Finally, the different understanding of today's theoretical and practical circles on the bankruptcy of the nature of the right of revocation. Request the right to say, the formation of the right to say, responsibility, said the compromise said other theories of the theoretical basis of different, but the starting and ending points of doctrine, based on maintaining the property of the debtor's responsibility to maximize the protection of creditors or managers exercise right of revocation. The second part, starting from a subjective and objective aspects, analysis of Insolvency right constitutes. Bankruptcy revocation constitutes subjective conditions, to distinguish between the debtor to dispose of property or interests paid and unpaid compensatory behavior shall debtor and beneficiary subjective bad faith as a condition, but gratuitous act, the world do not take to the parties subjective malicious standard. China starting from the point of view of the protection of creditor interests, unified to take the form of judgment rule, that is, the right to revoke the establishment and exercise of subjective malicious, not to the beneficiary as a condition. Bankruptcy revocation constitutes the objective conditions of behavior damages the interests of the creditors and behavior in the critical period before the commencement of the bankruptcy proceedings, as necessary. Damage behavior of the conduct of the debtor for the benefit of creditors, from two different standards, finds that: First, the property of the debtor as a standard, that the behavior damaged the interests of all creditors, which we call the fraudulent acts; Second, creditors status as a standard, that the behavior of the individual creditors get settled, we call biased sexual settled. The critical period of world insolvency provisions of varying lengths, a separable unitary different according to the nature and type of behavior can be revoked and pluralism settings. Bankruptcy revocation of the subject, that is to dispose of property of the debtor or the interests of fraud harmful behavior. Part III focuses on bankruptcy conditions for exercise of the right of revocation. Revocation of the right to exercise the procedural conditions, to manage the human rights to exercise the principal debtor for the defendant, third-person identity involving beneficiaries recovery of property should be listed as a co-defendant, other interested persons listed. The the managers exercise of the right to revoke to the termination of bankruptcy proceedings terminated, but found that two years after the end of the bankruptcy proceedings, the creditor may exercise the right to revoke revocable behavior. Substantive conditions on the exercise of the right to revoke the free transfer of property by both the transfer of tangible property, but also include the transfer of intangible property rights the, both debtor positive behavior is also debtor's negative behavior. China's bankruptcy law affect the revocation of the right to limit the type and scope of the debtor's gratuitous act on the free transfer of property; abandon the claim behavior should be classified under the general gratuitous act of the debtor as well, to give up claims has expired, whether conditional constituted; unreasonable price trading behavior The debtor usually violate the principles of market economy, buys dear and fire sale of goods or services; secured property debt secured with property behavior, contrary to common claims equality principle of the repayment of debt, but also said favoritism guarantee behavior. Constitute favoritism warranty claims established and guarantees established mainly need to define whether synchronization; unmatured debt prepayment behavior refers to fulfill the settlement period has not yet subject to a behavior, and the settlement of the behavior during the critical period of the provisions; on individual repayment behavior in times of crisis should be settled on the property secured creditors, the settlement of claims secured creditors is not listed here, and only individual repayment of existing debt settled, not settled immediately, etc. while fulfilling behavior. Through the exercise of the right to revoke the substance to achieve accurate grasp of the purpose of the behavior of all kinds can be revoked in the bankruptcy practice. The fourth part, by the revocation of the right to development status of foreign bankruptcy, the comparison of the bankruptcy law of the United Kingdom and Germany on the different the invalid behavior system and may revoke system, the legislation clear declaration of bankruptcy in the bankruptcy law the retroactive doctrine and no retroactive ' , as well as the development process of the bankruptcy law, both the shift from a focus on protection of the interests of the creditors to the protection of the interests of the creditors and debtor interests. Through the invalid behavior system and may revoke the system binary pattern of insolvency legislation introduced, the significance of the progress of our insolvency legislation. At the same time, learn from foreign advanced legislative experience, fallback provisions may revoke the behavior in the regulations, the distinction between withdrawing nature severity to set up a critical period, the provisions of the exercise of the right of revocation extinctive prescription, etc., and put forward China's bankruptcy law amendments and supporting The regulations still need to improve the content.

On the System of Bankruptcy Revocation Rights

Abstract

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