The Discussion Of Processing Executory Real Lease Contract In Bankruptcy Procedure

Article 18 of the Bankruptcy Law clearly states that bankruptcy administrator has the right to reject or assume the executory contract,while chinese and foreign scholars have been arguing about the defining standard of "executory contract".Meanwhile,according to article 69 of the Bankruptcy Law,the party needs to report to the creditor committee or the court in advance when administrator transfers of special property(land,house,etc.).It warns us that we need to be cautious in handling with real estate lease contract.In order to clarify the recognized criteria of the executory real estate lease contract,the way and the boundaries in which the manager's rights are exercised,the article integrates the Legislative Guide on Bankruptcy Law and the legislative materials of the Britain,America,Germany,and Japan,explores the reasons of court's adjudications in china,analyzes the executory real estate lease contractThe article is divided into five parts:The first part:It is to interpret the three concepts involved in the executory real estate lease contract:real estate,executory,and lease contract,clarify the types of real estate and effective claims that can be included in the bankruptcy consortium,and determine the conflicts of interest that this article focuses on.Refine the definition of the contract's "executory",highlight the need to fully consider the time to determine the contract completion status of continuing contracts.The second part:It is to explain the bankruptcy administrator who has the option to perform executory real estate lease contract,the basis for exercising their rights,and clarify the principles of bankruptcy law that must be considered when exercising their rights.The third part:It is the analysis of the real estate lease right shows that it involves a wide range of interests,a large crowd,and is different from ordinary claims And from the perspective of the "Contract Law",the author analyzes the conflicts and balances between the prohibition of contradictory acts,the performance of the right of defense and the option of the bankruptcy administrator.From the perspective of judicial practice,I analyze the inconsistencies in the time when the administrator exercises the option,and put forward regulatory suggestions.The forth part:It is starting from the legal effect of the manager's exercise of the option,specify that if the administrator chooses to continue to perform the contract,the part that the lessee has performed before the bankruptcy is accepted but the lessor has not paid can be regarded as ordinary creditor's rights.If the administrator chooses to rescind the contract,the unused rent of the lessee shall be implemented in accordance with article 88 of the Regulations on Several Issues concerning the Trial of Bankruptcy Cases of Enterprises,this part should be considered as necessary expenses that the creditors pay for common interests,which should be repaid preferentially.The advance deposit except the money saved in a specific account and the damages limited to the actual loss should be treated as ordinary creditor's rights.The fifth part:It is recommended to improve the monitoring mechanism for the implementation of executory real estate lease contracts and the restriction mechanism for terminating the contract,and introduce the right to transfer of executory contract,which pushes the bankruptcy consortium to get rid of burden.