Research On Dissolving Of Executory Financial Leasing Contract In The Bankruptcy Proceedings Of The Lessee

According to the provisions of article 18 of the enterprise bankruptcy law,bankruptcy administrator shall have the right to terminate the executory contract,the insolvency administrator of the right to unilaterally terminate without constraint.Whether or not the non-bankrupt party is in default,whether or not there is a fault,whether or not there are conditions for relief,the management may terminate the contract or continue to perform the contract at any time.The scholars frequently criticizes this,because many special types of contract counterparts’ interests will be damaged by the dissolution,and the specific legislative purposes in the substantive law will be completely lost.Financial leasing is such a special type of contract.With the continuous development of the bankruptcy cases involving the financial leasing industry in recent years,the application of financial leasing to bankruptcy law has gradually caused theoretical and practical problems.From the perspective of lessee bankruptcy,this paper discusses and clarifies the dissolution of financial lease.The first chapter mainly analyzes the current situation of the termination of the pending financial lease contract when the lessee goes bankrupt,in order to find out the deficiencies in the legislation and judicial practice of our country.In theory,the special discussion on the financial leasing contract comes from the identification of the financial leasing contract and the particularity of finance lease contract,especially the special interest of lessee lease item and the guarantee of lessor’s ownership.In this chapter,therefore,to clarify the two problems,on the basis of relevant legislation of our country in case the lessee enters into bankruptcy financing lease when dealing with the relevant laws and regulations of was investigated,due to the lack of legislation in our country,in judicial practice in dealing with the applicable law,bankruptcy administrator unilateral termination right to exercise and unlimited,lessor can retrieve the financing lease and can within the scope of how much damages,in connection with different sentence,damage the interests of the parties.The second chapter,from the internal perspective of the exercise of the right to terminate the pending financial lease contract,further discusses the legal application,the subject and limitation of the exercise of the right to terminate the pending financial lease contract when the lessee goes bankrupt.In combination with the recognition standard of "pending performance",the unfulfilled financial leasing contract belongs to the pending performance contract stipulated in article 18 of the enterprise bankruptcy law.If the financial leasing contract pending performance is terminated when the lessee goes bankrupt,the general rules for the pending performance shall apply.Considering the particularity of the finance lease contract,the bankruptcy administrator of the lessee must abide by the principle of maximization of bankruptcy property and the principle of balance of interests when terminating the finance lease contract to be performed.In particular,to consider the influence of the financing lease item to the lessee the production and business operation activities,objective to grasp the real value of the financing lease,and on this basis,on the "continue" and "terminate the contract under different hypothesis might affect estimates of the bankruptcy property value,finally make is conducive to the interests of all the creditors judgment,at the same time should also consider the interests of the shipowner,such as the lessor can retrieve the financing lease treatment etc.In addition,this chapter further discusses whether the lessor has the right to rescission when the lessee goes bankrupt.The third chapter expounds the legal consequences of the termination of the pending financial lease contract when the lessee goes bankrupt from the external perspective of the right to terminate the pending financial lease contract.In theory,there are differences on the ownership of finance lease and the scope of claim for damages.According to the provisions of "if the lessee goes bankrupt,the lease item does not belong to the bankruptcy property" in Chinese law and the principle of "one property,one right" in the property law,etc.,the author recognizes that the lessor can take back the finance lease item instead of the exclusive right under general circumstances.With respect to the lessee’s interest in the property,the lessor may be required by a non-bankruptcy rule to return part of the interest.In addition,the non-bankrupt party can declare claims for damages caused by the termination of the contract,and the scope of the claim for damages shall be limited to "available interests".