Comparative Study On The Right Of Rescission In German And Chinese Bankruptcy Law

"Equality of creditors" is the basic principle of bankruptcy law, but in the real economic activity this principle is hard to be abided by the debtors who get on the verge of bankruptcy. Before the bankruptcy procedure, the debtor still enjoys all rights to dispose his property. When he is on the verge of bankruptcy, considering a variety of interests, the debtor will transfer property for free, abandon the claim or pay off to several creditors etc. As a result of all these behaviors the actual number of the bankruptcy property is less than its due quantity. Bankruptcy creditors’repayment rate is reduced and the interests of the bankruptcy creditors as a whole are damaged. In order to eliminate the dangers of these behaviors, protect the interests of the whole creditors and to maintain the fairness among creditors, special provisions are set in the bankruptcy law as a remedy system. In the countries not approving the retrospective effect of the bankruptcy declaration the remedy system is the revocation right system. Germany is a representative country following the principle of bankruptcy without a retrospective effect. Its bankruptcy revocation right system has not only the theoretical comprehensiveness and specification, but also the successful judicial practice which promotes the improvement and development of bankruptcy rescission right related legislation. Law of the People’s Republic of China on Enterprise Bankruptcy also includes definite provisions for the bankruptcy rescission right, therefore the possibilities exist to compare the corresponding provisions in German and Chinese Bankruptcy Laws. By comparing the theory and practice separately, a way to improve the Chinese bankruptcy rescission right system will be found. This paper is divided into the following four chapters:The first chapter is about the German bankruptcy rescission right system in theory and legislation. The legal nature of bankruptcy rescission right, specific provisions of revocable actions in German Bankruptcy Law, and exercise of the bankruptcy rescission right are particularly and logical analyzed.The second chapter has centered on the bankruptcy rescission right in enterprise restructure. Through the analysis of the concrete rulings of the German Federal Supreme Court, the status and characteristics of the exercise of bankruptcy rescission right in the judicial practice in Germany are explored.The third chapter discussed the legislation and judicial practice of the Chinese bankruptcy rescission right. On the one hand, the related theoretical research and legislation in the Chinese Bankruptcy Law will be analyzed; on the other hand, the bankruptcy rescission right in Chinese liability restructure will be analyzed and the causes of the problems are explored.The fourth chapter talked about the reference significances of the legislation and judicial practice of German bankruptcy rescission right system for China. Some suggestions for perfecting Chinese bankruptcy rescission right system are presented.Chinese bankruptcy rescission right system is still in the early stage of the development. Both in the legislation and judicial practice it is far from the mature state. By drawing from German theoretical and practical experiences a positive effect will be made for the development and perfection of the Chinese bankruptcy rescission right system.