On The Exercise Of Bankruptcy Set-off Right In China

With the bankruptcy law in China getting more and more attention,bankruptcy set-off rights also receives more attention.Although there is a dispute about setting bankruptcy set-off rights,it is almost accepted that the bankruptcy set-off rights should be set by the law,considering the fair value,the guarantee function and the characteristics of the economy to clean up debt attached to it.In countries where the offsetting system is developed,the bankruptcy set-off rights is integrated in the law.For more than 30 years,a lot of detailed rules about bankruptcy set-off rights have been made in Chinese law,but there are still confusions and difficulties about the bankruptcy set-off rights.Some regulations relating with bankruptcy set-off rights cannot function well.Facing the insufficiency of the bankruptcy set-off rights in the application process,it is vital to build up the effective bankruptcy set-off rights in Chinese Enterprise Bankruptcy Law,which makes more effort to meet the needs of bankruptcy practice in China and coordinate with other institutions.This essay consists of four parts;it focuses on elements and effectiveness of bankruptcy set-off rights,and gives solutions to the problem.In the first part,analyses the essay the definition of bankruptcy set-off rights,comparing with the difference between foreign recognition of bankruptcy set-off rights and the Chinese related legislation.After introducing the definition of bankruptcy set-off right,it analyzes the reason why the bankruptcy set-off rights is necessary to exist,before tracing the legislation of bankruptcy set-off right in China.Finally,it defined the legal status.In the second part,discusses the essay the substantive elements of the exercise of the bankruptcy set-off rights.It is the scope and conditions of the claims and debts which can be applied in the bankruptcy set-off right.It contains positive element the negative elements,the former means the right of the property to be paid,which can be converted into money,mutual formal,before the bankruptcy application.The latter means some claims and debts should not be applied to offset by law,that is,the claims and debts should not have.In the third part,analyzes the essay theprocedural elements of the bankruptcy right of set-off.After introducing the two examples,it discusses the necessity of the declaration of claims,and then the subjective,the time and the way.At last,it summarizes the general process of bankruptcy right of set-off.In the fourth part,studied the essay on the legal effect of the exercising bankruptcy set-off rights.The claim shall be effective upon reaching the manager unless the administrator has investigated and requested the people's court to determine that the bankruptcy set-off right should not be established.The review is necessary,but the objection found in the review and the objection found therein shall not be made directly to the debtee and shall be brought before the people's court for relief.After the commencement of the bankruptcy set-off right,it should be retroactive.It can be seen that the exercise of the bankruptcy set-off right is facing the test and impact of the actuality;the bankruptcy set-off rights system also has a broad research space.