Study On Disposition Rules Of Executory Contract In Bankruptcy Procedure

Article 18 of China's Bankruptcy Law stipulates that the administrator may decide to continue or terminate a contract for which neither the bankrupt enterprise nor the other party has fulfilled the contract.At the same time,Article 42 and Article 53 of the Bankruptcy Law respectively stipulate the legal effects of continuing to perform and terminating the contract.The above-mentioned provisions are constructed into the rules of disposition of contracts to be fulfilled in the bankruptcy proceedings of China.Degree.However,with the continuous enrichment of bankruptcy practice experience in China,the way and effect of bankrupt enterprises in dealing with the performance of contracts become more and more complex,involving bankrupt enterprises,creditors,parties to the contract,bankruptcy administrators,courts and other interrelated subjects.Moreover,the relevant norms of the current bankruptcy law on the rules of disposal of pending performance contracts are not clear enough to be bankrupt.Practice provides accurate guidance,which leads to different opinions on the treatment of some problems in practice and theory.This paper intends to compare and sort out different opinions in order to make a modest contribution to China's bankruptcy legislation and practice.Article 18 of China's Bankruptcy Law is a general provision on the rules of disposition of contracts to be performed in bankruptcy proceedings.When applying this provision in bankruptcy practice,it is necessary to clarify its basic applicable rules.Firstly,the subject of exercising the right to dispose of the contract to be fulfilled is the bankruptcy administrator,not the creditors' meeting,creditors' committee or court.Secondly,the period for exercising the right to dispose of the contract to be fulfilled by the administrator should be within two months after the bankruptcy application is accepted,and the other party should be urged to do so.The administrator should reply to the other party within 30 days after the reminder;thirdly,the scope of the right to dispose of the contract to be fulfilled is the contract that the bankrupt enterprise and the relative per capita of the contract have not fulfilled,and the criteria for determining the completion of the performance should depend on the specific type of contract;lastly,China has not stipulated the criteria for the execution of the right to dispose of the execution of the contract,and the administrator should base on the criteria.Fidelity,diligence and obligation to punish.Article 42 of the Bankruptcy Law of China is a specific provision on the legal effect of continuing to perform a contract.There are two opinions in the academic circles of our country about whether the debts arising from the continued performance of the contract to be performed should belong to the common interest debt or the bankruptcy creditor's rights.The theory of common interest debt holds that the debts arising from the performance of the contract belong to the common interest debt both before and after the bankruptcy proceedings,based on the indivisibility of the contract;the theory of bankruptcy creditor's rights holds that the contract can be divided into two kinds: payable and payable For divisible contracts,based on the theory of contract performance consideration,debts arising from contracts to be performed only belong to common interest debts after bankruptcy proceedings,while debts before bankruptcy proceedings belong to bankruptcy claims.The author believes that the judgment of the nature of debts arising from the continued performance of contracts should depend on whether they meet the criteria for identifying common-interest debts.According to the provisions of Article 42 of the Bankruptcy Law of China on common-interest debts,common-interest debts should occur in the bankruptcy proceedings.Therefore,the author supports the view of the theory of bankruptcy creditor's rights.Article 53 of China's Bankruptcy Law is a specific provision on the legal effect of rescission of performance contract.There are two main arguments about the legal effect of contract rescission in civil law circles in China: the direct effect theory and the compromise theory.Therefore,there are different opinions about the basis of claim for contract rescission.At the same time,the legal effect of contract rescission in bankruptcy law is limited to the fact that damages belong to bankruptcy claims,which makes bankruptcy practice and theory to be fulfilled in bankruptcy proceedings.The legal effect of contract rescission and the nature of debt are different.The author focuses on the value goal of the bankruptcy law,and combines the relevant norms and theories of contract rescission.He holds that the legal effect of restoring the original state and compensation for damages should be produced after the rescission of the contract to be performed in bankruptcy proceedings of our country.The debt generated by restoring the original state should belong to the common interest debt,while the debt caused by damages should belong to In bankruptcy claims.