On The Exercise Of Bankruptcy Offset Right

There is a close relationship between the right of set off in the bankruptcy law and the right of set off in the civil law.The exercise of the right of set off in the bankruptcy law embodies the functions of priority to be paid,fairness and efficiency,and guarantee,etc.,so the right of set off in the bankruptcy law becomes an integral part of the bankruptcy law.Since the adoption of the enterprise bankruptcy law of the people's Republic of China(Trial Implementation)in 1986,with the development of the market economy,China has made more and more detailed regulations on the right of set off in bankruptcy from the legislative level.In2007,the enterprise bankruptcy law of the people's Republic of China(hereinafter referred to as the enterprise bankruptcy law)amended and supplemented the right of set off in bankruptcy on the original basis,but in some details There are still many disputes in judicial practice because the provisions are not comprehensive enough and there is no legal basis.In view of some difficulties encountered in the exercise of the right of set off in bankruptcy in China,it is of great significance to explore the exercise of the right of set off in bankruptcy in terms of safeguarding the legitimate interests of creditors,effectively alleviating the contradictions of economic and social development,and promoting the distribution of interests between creditors and debtors.Therefore,the improvement of the exercise of the right of set off in bankruptcy is particularly important in the current context Urgent.In the study of the exercise of the right of set off in bankruptcy,first of all,through a brief introduction of the case,this paper analyzes the legal problems caused by the case,and paves the way for the problems in the exercise of the right of set off in bankruptcy.Secondly,starting from the concept and nature of the right of set off in bankruptcy,this paper introduces the legal provisions of the right of set off in bankruptcy in China's bankruptcy law,reveals the relationship and differences between the right of set off in civil law and the right of set off in bankruptcy through comparative analysis,expounds the constituent elements of the exercise of the right of set off in bankruptcy in China from three aspects of subject,time and procedure,and analyzes the bankruptcy set off There are three situations in the process of exercising theright of set off.Thirdly,it analyzes the problems existing in the exercise of the right of set off in bankruptcy.First,the scope of the prohibition of set off is narrow;second,the period of exercise of the right of set off is groundless;third,the effectiveness of the administrator's illegal exercise of the right of set off in bankruptcy is not clear;fourth,the subject position of the bank in the exercise of the right of set off is not clear.At last,the paper puts forward some operable suggestions to improve the exercise of the right of set off in bankruptcy.The first is to expand the scope of the prohibition of set off,the second is to improve the exercise period of the right of set off in bankruptcy,the third is to clarify the effectiveness of the administrator's illegal exercise of the right of set off in bankruptcy,and the fourth is to standardize the main position of the bank's exercise of the right of set off.