The Processing Rules Of Real Estate Leases Of Executory Contracts In Bankruptcy Law

The processing of pending contracts in bankruptcy proceedings is essential to the protection of bankruptcy assets and the smooth progress of the bankruptcy proceedings In many countries,the bankruptcy law gives the right to continue to perform or terminate the contract that was signed before the start of the enterprise bankruptcy procedure and that has not been performed to the bankruptcy administrator.Chinese Bankruptcy Law also makes general provisions on the treatment of contract performance.However,it does not make clear provisions on the application conditions and scope of the option,it causes the bankruptcy administrator to enjoy too broad rights in judicial practice.Due to the particularity of the bankruptcy law,It can have some provisions that break through the contract rules in the civil law,but as part of our country’s legal system,bankruptcy law rules should not conflict with the fundamental interests protected by other laws,Especially on the issue of how to deal the special types of contracts.For example,on the issue of how to deal with real estate lease contracts,the legal preference protects the interests of the tenant through “No break of lease with bargain” and other rules in order to ensure the stability of the tenant’s house lease.Therefore,if the bankruptcy law allows the administrator to exercise the option of the unexpired real estate lease contract without restrictions,it will be contrary to the rules“No break of lease with bargain”.It will go against the legislative intent of protecting the interests of the lessee in the civil law,and it will bring great uncertainty to market transactions.In foreign bankruptcy laws,after making general provisions on the performance of the contract,it usually imposes certain restrictions on the administrator’s right to terminate the special type of contract.In dealing with the issue of real estate lease contracts,foreign bankruptcy laws often restrict the administrator’s right to terminate the contract,especially in the context of the lessor’s bankruptcy,it will strictly limit the administrator’s right to terminate to avoid the administrator’s abuse of power to infringe on the interests of the lessee..Therefore,when the Chinese Bankruptcy Law disposes of an unexpired real estate lease contract,it should consider breaking through the contract law restrictions to allow the real estate lease contract to be transferred or restrict the administrator’s right to choose power.,especially in the case of bankruptcy of the lessor,the legislation should distinguish whether the leased property is delivered or not,and set strict restrictions for the administrator to terminate the contract.When the leased property is not delivered,the lessee does not possess the leased property and does not form dependence on the leased property.This kind of real estate lease contract is no different from the general creditor’s rights contract,so it can give the administrator the right to rescind;However,when the real estate is delivered and the lessee has possession of the real estate,the administrator’s right of rescission should be restricted.Finally,considering that the lessee knows that the lessor has entered the bankruptcy process and loses the basis for performing the contract but chooses to continue to perform the contract,the lessee should bear part of the risk.Legislation can consider reducing or exempting the lessor’s maintenance and management obligations,or it can use rent to offset the interests of the lessor and the lessee.