Study On The System Of Cancellation Right Of Individual Liquidation In Enterprise Bankruptcy

As an important branch of the cancellation right of the bankruptcy law,the system of individual liquidation cancellation right has its unique functional value.At the same time,it is also a double-edged sword.Too strict regulation is not conducive to protecting the legitimate rights and interests of the opposite party and maintaining the safety of transactions.Too wide regulation will prevent many individual liquidation acts from being canceled,which is not conducive to protecting the interests of creditors to the maximum extent.Articles 31 and 32 of the Bankruptcy Law of China and articles 14 to16 of the Judicial Interpretation(II)constitute the basic framework of the system of revocation of individual liquidation in China.Through empirical research,it is found that there are problems in judicial practice,such as judges’ different identification of case facts and mechanical application of legal provisions,which reflect the inadequacy of China’s system of revocation of individual settlement,the overlapping of individual settlement and fraud,and the unclear division standard,which easily lead to judicial confusion;Moreover,the enumeration method can not fully regulate the individual settlement behavior,which is easy to cause omission.Due to the lack of general requirements for the exercise of the right of revocation of individual repayment in our country,in addition,there are obvious omissions in its constituent requirements and applicable exclusions under the enumeration law,and there are also many unclear places in the implementation of the right of revocation.Specifically reflected in: First,the provisions on the exercise elements of the three listed individual liquidation behaviors are different.Advance liquidation and post guarantee do not need to have the causes and consequences of bankruptcy,while the provisions on individual liquidation of matured debts are abstract and general,not operational.Second,the subjective elements and the way of adducing evidence are not clear,and the judicial guidance is not strong.Third,the related parties have not been included in the bankruptcy law for differentiated regulation,while individual settlement of related parties is more common in China.Without strict regulation,the system function of revocation right will be greatly weakened.Fourth,there are errors and omissions in the exception provisions,and the protection of bona fide counterparts and legitimate transactions is insufficient.Fifth,there are imperfections in the provisions on the subject,period and consequences of the implementation of the revocation right.In order to solve the differences in judicial application,the author believes that the system of revocation right of individual repayment should be improved from the following aspects: first,establish the general conditions for the exercise of revocation right,including: the general critical period is 6 months;Insolvency is presumed to have bankruptcy reasons;Take "damage the debtor’s property" as the result element.Second,the introduction of related parties to distinguish regulation.First,determine the scope of the stakeholders.Secondly,according to the category of individual liquidation behavior,the judgment time of individual liquidation of related parties is determined.Finally,the exercise of revocation right is regulated leniently,and the critical period of one year is applicable.Third,improve the exception provisions.Explain "benefit" as "lossless".Article15 of the Second Judicial Interpretation excludes the exceptions to compulsory liquidation,and adds two exceptions: customary transaction payment and new value exception as supplements.Fourth,improve the implementation provisions of revocation right.Clarify that the debtor is the subject of exercising the cancellation right during the reorganization period,and if it fails to perform its duties,the administrator shall assume such duties;In order to ensure the integrity of the law,the exercise period of the revocation right is clearly stipulated as: within one year from the acceptance of bankruptcy,the revocation right will be extinguished within five years from the occurrence of the act.Clarify that the way of property recovery can be in the form of returning original objects and equivalent cash;For the relief of bona fide creditors and the third party,if the consideration has been paid,property has been returned and can not be recovered,the claim for compensation shall be declared as a joint benefit debt in the bankruptcy proceedings.