A Research On Rescission Exception Of Preferrential Payment

In order to prevent individual creditors from being suddenly paid when the debtor is close to bankruptcy,resulting in an unfair distribution of property among creditors,Article 32 of the Bankruptcy Law provides for a separate liquidation revocation system to regulate it,and the proviso provides for individual liquidation revocation exceptions.Individual settlements that "benefit the debtor’s property" will not be revoked.In practice,due to the simplification of the provisions for the cancellation of exceptions,the Supreme Law did not further clarify the “prevention of a large number of lawsuits”.Courts at all levels have too narrowly understood the concept of “benefit” when applying cancellation exceptions,which greatly reduced the rules for the cancellation of exceptions Scope of application.At the same time,due to the lack of systemicity and systematicness in the judicial interpretation and theories and the induction of liquidation and revocation exceptions,the standards of courts at all levels when applying the revocation exception rules are confusing.The core of the problem lies in the lack of the value orientation necessary for understanding in the face of ambiguous legal concepts,and the way to solve the problem lies in clarifying the institutional functions it wants to achieve.The individual liquidation revocation system can be traced back to the "Paul’s right to sue" in Roman law,and finally separated from the creditor’s right to rescind and become a whole.Along with the continuous development of society,the legal form and system function of individual liquidation revocation systems are constantly changing.So far,its value orientation has gone through a changing process from creditor standard,creditor and debtor two-level balance to joining social considerations.Through a diachronic comparative analysis,it is not difficult to find that the core value of the bankruptcy law is to achieve substantial equality of creditor’s rights,rather than simply "equal compensation".On the basis of achieving certain social goals,priority is given to some creditors’ rights and bankruptcy It is indispensable to achieve the purpose of legal legislation.On the other hand,the bankruptcy law,as a special law,should not excessively interfere with the normal transaction order in addition to adjusting the normal transaction relationship in order to achieve the stated goals.China’s bankruptcy law aims at fair settlement of creditor’s rights and debts,taking into account the interests of all parties.When considering the scope of application of the revocation exception,it should consider both preventing the debtor from transferring property by individual settlement,and also providing the debtor with normal operations and rebirth.Institutional support will ultimately balance the interests of creditors,debtors and society.Therefore,the scope of the revocation exception rule should be expanded through legal interpretation.At the same time,in order to prevent the confusion of application by simply expanding the scope of application,this article summarizes four types of exceptions to revoke exceptions: specific property benefit exceptions,abstract property benefit exceptions,and public interest exceptions.Exceptions to the manager’s discretion.The specific type of property benefit exception refers to the situation where new property is brought to the debtor as a result of individual settlement,and the value of the property is greater than or equal to the value of the property disbursed due to individual settlement.Abstract property beneficiary refers to the situation where although individual settlement does not meet the exception of specific property beneficiaries,it may be possible to increase the total amount of creditors’ compensation through debtor’s continuous operation or increase the possibility of debtor’s successful reorganization.Public interest exceptions refer to situations in which the debtor’s property is not a benefit,but individual settlements should not be revoked under the bankruptcy law’s consideration of social interests.The manager’s discretion exception refers to a situation in which the liquidation behavior complies with the individual constituent elements of revocation and does not constitute the above three exceptions.The manager decides through his professional judgment not to exercise the right of revocation.In view of the lack of necessary professional judgment and other reasons,the court was more conservative in determining the cancellation of exceptions.At the same time,in order to adapt to the rapid development of civil and commercial transactions,it is necessary to clarify such exceptions and clarify the manager’s professional judgment.The identified exceptions prevent the misunderstanding that if the right of revocation is not exercised,that is,of course,the manager’s liability is assumed.