Study On The Right Of Bankruptcy Rescission

Bankruptcy is a legal phenomenon when the market economy and the society reached a certain stage. China since 1986 through the"China's Insolvent Law of Enterprise (proposed)"has been more than 20 years; corporate insolvency has become a common phenomenon. Bankruptcy law as a special law of civil law As a special law of civil law,the basic function of bankruptcy law is to achieve fair payment. In order to restrict various behaviors of evading creditors and to protect the interests of creditors. As a law of regulating insolvency default and protecting of the legitimate interests of creditors, Bankruptcy Law is a very important component of National legislation. With the developing of the economic, the insolvency law generally has been modified. China on August 27, 2006 promulgated the"People's Republic of China Insolvent Law of Enterprise", implemented on June 1, 2007, the right of bankruptcy rescission also made larger changes. Based on the differences between the enterprise insolvency law and the existing system of enterprise insolvency law and in conjunction with legislative experience abroad, give some proposals to the right to revoke to China's current bankruptcy system.Right is the target of this paper, it is divided into four parts, in accordance with the definition of rights, the condition to set up the rights, the exercise of the right.The first part is analysis of the overall narrative on the right of band. Firstly, we analyze the necessary of establishment the right of bankruptcy rescission. In the condition of approaching insolvency occasions, the enterprise's net assets is remaining on a very low level, as managers of in the enterprise almost has no income, but when the company at the vicinity of insolvency, they still have the right to control the company. Therefore, no one knows the company is in the vicinity of insolvency, the company's actual manipulate the company is likely to transfer property to their own benefit or to take care of their own stake in the company and creditors, and that the scope of the estate reduced greatly, to the detriment of all creditors fair payment opportunities. So the most important function of bankruptcy law is to contain the insolvent debtor and individual creditors in bankruptcy to seize the property of the company, after implementing the right of bankruptcy rescission, debtor should return the property interests to company. Secondly, analysis the legal nature of the right of bankruptcy rescission .Different theories prove that the legal nature of a law decide the settings of the right, through the discus of these theories, in my opinion, the third theories is more reasonable. Finally, discuss the relationship between cancellation right of creditors in the civil law and the right of bankruptcy rescission in bankruptcy law, the tow rights have a lot of commons, and have no substantial difference in implementing, but, after all, the two rights are in the two different laws, and that could make have doubts , therefore, we discuss the differences of the establishment of premise, the subject of the right of bankruptcy rescission, the scope of the right, the exercising method and the legal effect of the right of bankruptcy rescission between the two rights.The second part is study on the essentials of the right. In most of the papers study of the right of bankruptcy rescission hold that, there are two essentials of the right, one is objective intention of revocable acts, the other is a subjective intention of revocable acts,, the former one is the essential of the right under any, but the latter is the essential generally paid on the revocation of the establishment of the right elements. In this paper, foreign legislative experience of these two elements was analyzed separately.The third part is study on the object of bankruptcy rescission. The bound of revocable acts is the key point of the legal system of the right of bankruptcy rescission. Firstly, define the range of rescission. Then, through analysis the concept of the rescission act and according to our original insolvency law of enterprise and existing enterprise insolvency law of enterprise, discuss the difference between the bankruptcy invalid act and bankruptcy rescission , may revoke the right to void acts with the provisions of bankruptcy, insolvency and bankruptcy may revoke acts invalid further acts Analysis. Based on the comparison of the legislation of typical countries, this dissertation considers that our legislation should adopt the legislation which conjoins with generalization mode and enumeration mode. Afterwards, this part analyzes the elements of the right of bankruptcy rescission and discusses two basic types of revocable acts which include fraudulent acts and preferential acts, which conjoint original existing enterprise insolvency law and the legislation of typical countries'insolvency law, discuss on some important problems.The fourth part is study on the realization of the right of bankruptcy rescission. In this part, first discuss the litigant. This dissertation holds that the bankruptcy trustee should be the subject of the right of bankruptcy rescission, the respective of creditors may exert the right if necessary. This dissertation also holds that the bankruptcy trustee should perform the right through the way of suit. In the final of this part, concerning the issue on the legal effect of the right of bankruptcy rescission, this chapter analyzes it in three aspects such as invalidation, restitution and the effect to the transferee.