Research On The Application Of The Right To Terminate The Contract

When the party as the debtor enters the bankruptcy proceedings,the bankruptcy administrator usually chooses to terminate the outstanding contract to maintain the preservation and appreciation of the bankruptcy property.But because not the bankruptcy administrator to perform the applicable principles of the contract,contract definition standard is not clear,to perform the contract after the legal effect is unknown and not for special type of contract involving special rules,theory and practice disputes,and need to clear,to balance the interests of the parties,prompted the rational utilization of bankruptcy resources,improve the overall efficiency of the whole market,form a positive cycle.Relevant theoretical questions about the application of the right to terminate the contract.By studying the etymology of the contract to be performed,the contract to be performed is defined as the contract concluded by the bankrupt debtor and the counterpart of the contract before the bankruptcy application is accepted.On this basis,the particularity of the comparison with the general right to rescind the contract and the refusal of the contract,and the legislative reasons of the right to terminate the contract to perform the contract are discussed to demonstrate the legitimacy of the right to terminate the contract.On the principle of the bankruptcy administrator’s right to terminate the contract.On the basis of the analysis and study of the "heavy burden principle","Business judgment principle" and "Balance of Interests principle",the judicial practice,and the principle of balance of interests.On the criteria for the bankruptcy administrator to exercise the right to be performed.On the basis of the analysis and summary of the practical judgment documents,the single service contract and the contract already performed by one party are excluded from the category of the contract to be performed in the bankruptcy law,and the scope of the contract to be performed is limited to the double service contract.For the double contract,the standard of the scope of the contract is established,and the performance status of principal obligations,secondary obligations and accompanying obligations is further distinguished.On the basis of the limitation analysis of the failure of the obligations of the master and slave,the "implication" and "difficulty" are introduced as the definition criteria.On the legal effect of the contract.Combined with domestic and foreign research and China’s judicial practice,there is no retrospective force after the termination of the contract,and the counterpart of the contract can only declare the ordinary creditor’s rights.By analyzing the applicable basis of the right of recovery and the common beneficial creditor’s right,it is further pointed out that the legal effect after the termination of the contract should be "compromise" try to persuade ".On this basis,the behavior of the bankruptcy administrator to terminate the contract is defined as a breach of contract,and the contract counterpart can claim the bankruptcy claim to the bankruptcy debtor for the loss of the bankruptcy administrator to terminate the contract.The scope of the right of claim for damages is limited to the actual loss and performance benefits,but the creditor’s right does not have priority and can only be repaid as an ordinary creditor’s right.For the liquidated damages terms agreed in the contract,their nature should be distinguished.The compensatory liquidated damages can be selected with the right to claim for damages,and the punitive liquidated damages can only be declared for the inferior creditor’s right.Concerning the application of the right to terminate the contract.By introducing the legislative style of "generalization + enumeration" outside the region,it is suggested that the Enterprise Bankruptcy Law add a clause "the bankruptcy administrator of the contract cannot remove special legal interests" as the guarantee clause to protect the rights and interests of the counterpart of the special contract to be performed.From the perspective of law doctrine,the paper analyzes the special benefits of contract law of non-bankruptcy law norms,so as to type the special type of contracts to be performed in the bankruptcy law,and then limits the discharge right of the bankruptcy administrator.