A Study On The Processing Rules Of The Lease Contract In The Bankruptcy Procedure

The lease contract is an important type of the contract,there are some special provisions in the contract law,which is shown as the rules like"not breaking the sale of lease,the lessee’s right of preemption"which give more protection to the lessee’s right. In bankruptcy procedure,how to handle the unexpired lease contract and the related processing rules are imposed in the Bankruptcy Law of China,the Article eighteen,it gives managers the choices about that whether the lease contract should be continue,which it will destroy the original lease and can ineffectively protect the lease rights of the lessee,the practice may lead to many problems.Therefore,we need to learn from the legislative experience of the main developed countries in the world and establish the special rules for the unexpired lease contract to protect more effectively the lessee’s right of lease and balance the interests of all parties.This thesis discusses the theoretical treatment rules of the unexpired lease contract on the Bankruptcy Law,sets gradually the details of the contradictions and conflicts between the current processing rules and the contract defense system,rental people bankruptcy,and tenant people bankruptcy.It discussed the two cases of unexpired lease contract legislation-the lessor bankruptcy and the lessee bankruptcy,discussing the details and the refinement by specifically designing managers’ right on the protection of the interests of all parties.Besides the preface,the thesis consists of four parts.The first part,the premise of the unexpired lease contract on the Bankruptcy Law is to explore the unexpired lease contract rules of the theoretical foundation.This part starts from the dispute of the nature of the leasehold illustrating the largest leasehold interest lying in the particularity of the lease contrct,and further introduces the special performance. Based on the leasehold interest,the first part from the angle of the Bankruptcy Law further states that the leasehold in bankruptcy procedure should be given special protection,the two rules" not breaking the sale of lease,the lessee’s right of preemption" shall apply in Bankruptcy Law.The second part introduces and analyses the unexpired lease contract processing rules in the legislation of main developed countries,and sums up some content worthy of our reference.In the legislative provisions of Germany and Japan,the two cases for the lessor bankruptcy and the lessee bankruptcy are distinguished,while in the UK and America legislative provisions,the rescission right of lessor restriction was more interested.The third part summarizes the current rules into two kindsrone is that the manager choose to terminate the lease contract;two is that the manager choose to continue to perform the contract.The thesis further elaborated the conflict that the rules and contract law system generated:first,when the lessee is in the bankruptcy the manager’s right of choice and the lessor’s right of cancellation would generate conflict. Second,when the lessor is in the bankruptcy manager’s cancellation right and the rescission right of lease would generate conflict.The fourth part puts forward the suggestions on the unexpired lease contract processing rules of the Bankruptcy Law,in accordance with the lessee and the lessor bankruptcy in the two cases of bankruptcy Provisions.On the one hand when the lessee is in the bankruptcy,it limits the lessor’s lift and retrieve rights and allows the administrator to transfer to the unexpired lease contract;on the other hand,when the lessor is in the bankruptcy,it needs to limit manager’s right of rescission and allows managers sale lease with a contract,the rules "not breaking the sale of lease,the lessee’s right of preemption"would be apply in the transfer.