| Bankruptcy law as the special law of the Civil and Commercial Law, its basic function is to protect creditors, to achieve a fair settlement between claims and liabilities. The Bankruptcy Act sets up revocation of the right of the bankruptcy system to regulate a variety of acts of escape debt bankruptcy and protector the legitimate interests of the creditors. So it can revoke harmful acts to creditor and make the action of the return of property to the distribution of property in bankruptcy. During the process of"enterprise Bankruptcy Law (Trial)" of the implementation a rather serious bankruptcy fraud come out so that scholars have said that the old bankruptcy law's implementation to a certain extent, has become bankrupt of bankruptcy law. The investigation report of the World Bank on China's state-owned enterprises in the bankruptcy points out that in many cases, the bankruptcy is no longer a threat and becomes a the temptation of escaping debt for debtor. At present, China's new bankruptcy law on avoidance of bankruptcy system is not yet ripe with still large gaps compared with advanced cases of the legislation. There is still weakness in the theoretical circle of bankruptcy avoidance system research. If escape debt fraud does not solve the problem, the bankruptcy system will be bound to go astray and the healthy development of social market economy will also be affected. Therefore, it will be significant in theory and practice for further in-depth study of the bankruptcy of avoidance system. This article will analyze and discuss on the concept and characteristics of avoidance of bankruptcy , roles , elements, the main body, the exercise of the right, legal result of the bankruptcy law in the theory and so on . the system is intended to sort out the bankruptcy of avoidance theory framework through the bankruptcy law lists specific acts constitute a revocable, the specific operation which may have risks and argue the problems and ideas to address issues such as the analysis, and enhance operation. Through discussion the bankruptcy of avoidance, combined with foreign legislation and the cases of China's practice, then put forward theory and practical suggestions to improve our country from the bankruptcy of avoidance system in the hope of our country to revoke insolvency of the right to make the system perfect.The full text is divided into three parts, including introduction, body and the conclusion. Introduction of this article describes the purpose, scope of the study, situation of China's Avoidance of bankruptcy on theory and practice, necessity and significance for the further study of the bankruptcy of avoidance system.The body is divided into five sections; the author seeks to elaborate the opinion for the issues of the avoidance of bankruptcy.The first part is an overview of the avoidance of bankruptcy.Through the general theory of the avoidance of bankruptcy,such as the concept and the history of the avoidance of bankruptcy, the relationship to the rescission power of civil law, the value of the avoidance of bankruptcy and so on. These reveal its status and roles.The second part is about the general elements of the avoidance of bankruptcy. The first part of this article through the comparative analysis and summary of Germany, Japan, the United States, ours model legislation should take the combination of the broad principle and enumerating principle, it should be on the general elements to be provided. This article attempts to distinguish between the general elements and special elements of bankrupt rescission power, focusing on an analysis of the general elements of the avoidance of bankruptcy. That can be applied to all elements of action, be revocated, and that general elements excludes the malicious subjective elements, but should be some of the revocable action's elements.The third part introduces its conduction pattern and the risk. In order to keep the practice and work closer, through the norm analysis, comparative analysis etc. of the every pattern of bankrupt rescission power according to "Enterprise Bankruptcy Law", it makes more in-depth discussions one by one, and tries to point out its defection, controversy of practical applications and probable risk. So I want to divide into seven main areas to discuss these:Firstly, the revocation of freely transferring the property. The ones who have the right of avoidance of bankruptcy only need to prove when the act of freely transferring has happened, and what result does the act dues to. The subjective mind of the one who transferred property freely is been seemed as the fact.Secondly, revoke the obviously unreasonable prices of the trade.Thirdly, provide debt to the liability which doesn't have the guarantee before.Fourthly, prepay to the debt which is not at term.Fifthly, withdraw the acts that give up the creditor's rights.Sixthly, the acts of individual discharge during the crisis. Seventhly, for the shortages of the acts which can be revoked regulated in China's Bankruptcy Law and the advice for the legislation to consummate.The fourth part is for the exercise of the avoidance of bankruptcy and the legal consequences. This chapter analyses the realization of the right of avoidance of bankruptcy from the level of the running system. Focusing on the problems of the subject of right, exercise style, the approach, the defendants and the legal effects, all above are for the avoidance of bankruptcy. This article holds the point that the subject of the avoidance of bankruptcy only can be the bankruptcy administrator. Bankruptcy administrator exerts avoidance of bankruptcy need to resort to forms of action, and it should consider the counterpart to the acts of debtors as the defendants.The fifth part is for the legal responsibility of the act of revocation. In this paper, by analyzing I think, the new bankruptcy law has the lack of regulating on civil liability, and there are significant gaps in the criminal liability. So there is something need to be settled, because the new bankruptcy law indulges the act of revocation objectively which caused it can't have the due effects.It has a summary of the full text in conclusion, the standpoint is about the legislation clauses of the avoidance of bankruptcy, which is so abstract, doesn't have a perfect system, lacks the clauses of general elements. The revocable action is short of subjective element, and shouldn't be removed without distinction. If we don't pay attention to this distinction, the whole economic model will be damaged. So this article considers that the system of the avoidance of bankruptcy must establish reasonable restriction and balance system. We should make the balance mechanism to define the civil liability, criminal liability, which can prevent occurrence of bankrupt and escaping debt, make the economic activity go healthily and orderly. |
