The Bankruptcy Administrator’s Option Of The Unfulfill Leasing Contract

Bankruptcy administrator option refers to bankruptcy administrator has the right to performance or reject of the contract when the bankruptcy has been set up but not fulfilled.Bankruptcy law endow bankruptcy administrator option is largely based on diversified value orientation of the law and the civil law standard by the individual standard to the transition of the social standard. As for both of the general executory contracts and special executory contracts, Current bankruptcy legislation in our country of the provisions of the insolvency administrator option is very simple and general, the bankruptcy law in our country about the provisions of the insolvency administrator options are a one-size-fits-all approach, namely the contract what needs to be performed, the bankruptcy management per capita may exercise the option. But lease contract has a long-term, continuing characteristics, the law that give the real right confrontational, nature priority etc, also it is because of this particularity, our country contract law and the provisions of the "buying and selling is not break lease". If the bankruptcy administrator based on the provisions of the bankruptcy code to remove the original leasing contract, for the lessee, is bound to cause more damage than other general creditor’s rights. In judicial practice, but also often because of legal application problems. In order to realize the balance of the interests of all parties,Foreign legislation on bankruptcy administrator option which combined with the special features of the lease contract, mostly through limit the bankruptcy administrator options. It is necessary in the bankruptcy law on insolvency administrator to the lease contract option for special regulations, setting up reasonable bankruptcy law about the lease contract and other special special rules. Through the bankruptcy law principles and rules of the specific Settings, achieve the balance of public law and private law, the interests of various parties. According to the actual situation of our country, by comparing the various countries’ system design fully, the insolvency administrator to the lease contract option system design in general can adopt regulations in Germany and Japan the bankruptcy law system of the bankruptcy administrator options set to distinguish the lessee bankruptcy and the lessor bankruptcy two circumstances, and according to the lease item is delivered to distinguish: the lessee bankruptcy by a party, the bankruptcy administrator shall have the right to terminate the lease contract. For the loss caused by opposite party of the contract, can be declared as bankruptcy claims. Bankruptcy is declared, although the contract has been set up, but the subject matter has not been delivered, bankruptcy administrator and contract the other party shall have the right to terminate the contract, the corresponding contract opposite party shall enjoy the right of claims, within the period for two weeks, said fails, loss of termination rights; In the case of the lessor bankruptcy, if the lease item has not been delivered, the parties thereto shall have the right to terminate the lease contract; The lessor bankruptcy by a party, the bankruptcy administrator shall have the right to terminate the lease contract. For the loss caused by opposite party of the contract, can be declared as bankruptcy claims. Choose to continue to perform the contract, the lessee may at the same time for the debtor to creditor’s rights enjoyed by offsetting the rent of the insolvency administrator.