On The Exercise Of Bankruptcy Right Of Set Off ——Taking The Dispute Over Bankruptcy Right Of Set Off Between Company A And Bank B As An Example

The bankruptcy proceedings directly affect the protection of the interests of the bankrupt subjects.With the industrial reform and the impact of COVID-19 brought about by China’s economic development,more and more attention has been paid to the laws and regulations related to bankruptcy,especially the system of the right to set off bankruptcy.The effective application of the bankruptcy set off right system is related to the protection of the interests of bankrupt creditors and the subsequent repayment proportion of other ordinary creditors.After the implementation of the new bankruptcy law in 2006,the awareness of bankruptcy related laws has been increased,and more creditors advocate bankruptcy offset.However,whether creditors can claim bankruptcy offset and how to do it.Specifically,there are differences in the determination of different judges,such as whether conditional creditor’s rights can be bankruptcy offset,whether there is subjective malice when creditors obtain creditor’s rights,and whether creditor’s rights affect bankruptcy offset without bankruptcy proceedings.In order to unify the determination of the exercise of the bankruptcy right of set off,this paper takes the "dispute case of the bankruptcy right of set off between company a and bank B" as an example.By analyzing the elements of the exercise of the bankruptcy right of set off,combined with the circumstances of the case,this paper puts forward three controversial focuses of the case: whether the two parties have the right to mutual liability before the bankruptcy acceptance;Whether there is subjective malice in bank B’s obtaining creditor’s rights in this case;In this case,whether the creditor’s rights of bank B have not been subject to bankruptcy proceedings will affect its exercise of bankruptcy set off right.Focusing on the focus of the dispute and in combination with the legal and factual conditions,the case is evaluated and analyzed as follows: the creditor’s rights of bank B to company a are not extinguished due to the merger and reorganization of company a and company C.in this case,both parties bear the creditor’s rights and debts of each other before the acceptance of bankruptcy,and the conditional creditor’s rights of company a to bank B can be offset by bankruptcy;In this case,company a failed to prove that bank B obtained the creditor’s rights with subjective malice,and bank B obtained the creditor’s rights for reasons one year before the bankruptcy application,which is an exception of subjective malice,and bank B obtained the creditor’s rights without subjective malice;In this case,the creditor’s rights of bank B have been notarized and enforced by other courts.The authenticity and accuracy of the creditor’s rights of bank B can be guaranteed.The creditor’s rights of bank B will not affect its bankruptcy offset without bankruptcy proceedings.Therefore,in this case,both parties are responsible for each other’s creditor’s rights and debts before the bankruptcy acceptance,and there is no subjective malice for bank B to obtain the creditor’s rights,and the creditor’s rights of bank B will not affect its exercise of bankruptcy offset right without bankruptcy proceedings.Bank B can claim bankruptcy offset from company A.On the basis of case evaluation and analysis,for the problem of different standards for determining whether creditors can bankruptcy offset in practice,we should improve the relevant prohibition provisions of bankruptcy offset right and standardize the exercise procedure of bankruptcy offset right,so as to clarify the exercise of bankruptcy offset right.