The Study On The System Of Bankruptcy Avoidance Powers

Trustee’s avoidance powers in the bankruptcy law is to cancel the debtor’s biased liquidation and fraudulent conveyance in a period of time near bankruptcy,recovery of the debtor’s property to prevent the devaluation of the debtor’s property value and the interests of creditors,and maintain the legislative goal of fair payment of bankruptcy law,as well as the correction of the debtor’s bankruptcy fraud near bankruptcy,and to correct the bankruptcy fraud committed by the debtor when it is about to enter the bankruptcy proceedings.China’s current bankruptcy law has established a relatively clear system of bankruptcy avoidance powers.However,due to the late start of the research on the bankruptcy law in China,the system of bankruptcy avoidance powers still needs to be improved.According to Enterprise Bankruptcy Law in China,the nature of the bankruptcy revocation right should be right of action of formation.This paper also compares the bankruptcy avoidance powers with the creditor avoidance powers in civil law,which have the same origin with bankruptcy avoidance powers and analyzes the differences between them.The difference between them in legislation lies in their different value pursuit.This paper also analyzes the theoretical basis of the creditor’s cancellation right.The conclusion is that the rationality of the bankruptcy avoidance powers comes from the principle that creditors should be equal and the principle that the debtor’s property should be preserved and increased,and analyzes the legitimacy of the intervention of the bankruptcy avoidance powers on the previous behavior,and thinks that the bankruptcy avoidance powers can encourage the debtor in financial distress to enter the bankruptcy proceedings.Through the comparative study of the legislation of the right to revoke bankruptcy in different legal regions,this paper summarizes the general elements of the revocable act of bankruptcy,including legal act,harmful,implementation within a certain period before bankruptcy,and subjective elements.There are different regulations in different regions on whether subjective factors are the elements of revocable bankruptcy.In China,the right of bankruptcy avoidance does not consider the subjective elements of the parties.The provisions of revocable behavior can be divided into biased behavior and fraudulent behavior,and so is China.After analyzing the revocable act of bankruptcy stipulated by the current bankruptcy law of our country,this paper thinks that there are mainly the following problems: Firstly,it cannot effectively cover the revocable act of bankruptcy only by listing;Secondly,the exception of revocable bankruptcy is too simple and abstract,Thirdly,the objectivism legislative model protects the rights and interests of creditors and the order of fair repayment,but sacrifices the interests of bona fide counterparts and transaction security.Therefore,the subjective elements should be properly considered and the bona fide counterparts should be properly protected.As for the ways to exercise the bankruptcy avoidance powers,the comparative analysis of bankruptcy legislation in various jurisdictions mainly includes litigation,which is the most important and effective way,demurrer,and the ways to exercise the right outside the litigation.In the lawsuit of bankruptcy cancellation right,the plaintiff should be the trustee and the defendant should be the counterpart of the transaction.In China’s objectivism legislative mode,the bankruptcy trustee does not need to prove the subjective malice of the debtor and the counterpart,which reduces the burden of proof of the trustee.However,it is difficult to prove the bankruptcy reason of the debtor in the critical period of six months for individual liquidation behavior,so some legislative techniques should be adopted to improve it.The direct legal consequence of the exercise of the right of bankruptcy avoidance is that the acts performed by the debtor lose their effectiveness,and the trustee can recover the corresponding property and bring it into the property of the bankrupt.If the legal representative and other responsible persons of the revocable act committed by the bankrupt are intentional or negligent,they should also bear the corresponding liability for compensation.If the trustee fails to file a lawsuit for the cancellation right of bankruptcy in accordance with the law,the creditor may file a lawsuit for the cancellation right of the creditor in the bankruptcy proceedings.Civil Code of our country has perfected the system of creditor’s cancellation right,but there are contradictions between the debtor’s exercising creditor’s cancellation right in bankruptcy procedure and the system of bankruptcy cancellation right,such as whether the cancellation of paid behavior should consider the subjective malice of the opposite party.It should also be improved in the system of bankruptcy avoidance powers.In the end,this paper puts forward the following suggestions to improve the bankruptcy avoidance system in China.The first is to improve the provisions of the revocable act of bankruptcy.In addition to listing specific acts,there should also be a general rule.The specific behavior should also be specified more clearly.Secondly,The balance of interests in bankruptcy law should be improved.We should balance the bona fide counterpart with the transaction security and order.At the same time,to reduce the difficulty of proof of bankruptcy trustee,the provisions of subjective elements should be objective in legislative technology.The exception of revocable Bankruptcy Act should also be perfected.Finally,it connected with the provisions of revocable behavior in the system of creditor’s revocable right in China’s civil code.On the one hand,we can learn from its provisions and incorporate them into the bankruptcy revocable behavior.On the other hand,we should improve the rules of the creditor’s revocable right in the bankruptcy revocable right system to avoid contradictions in the exercise.Especially for the cancellation of the act of unequal disposition in the paid act,it is necessary to clarify the subjective elements of the debtor’s own litigation in the bankruptcy proceedings,which should be consistent with the provisions of the right to rescind bankruptcy.