The Application Of The Bankruptcy Administrator’s Rescission Right Of Contract And The Problem Of Special Contract Restrictions

There is no substantial obstacle in proving the rationality and necessity of the bankruptcy administrator’s dissolution right as stipulated in Article 18 of the Enterprise Bankruptcy Law,either from the perspective of academic theory or from the perspective of type cases.From the perspective of academic evidence,the bankruptcy administrator’s right to rescind is a special legal right to rescind,which is compatible with the legal right to rescind framework system in the current law,with the "other circumstances stipulated by law" in Article 563,paragraph 1,Clause 5 of the Civil Code.From the perspective of typed cases,creditors in the contract relationship to be performed have no need for special protection compared with all creditors,and for non-monetary payment creditors,the practical effect of the path of refusing to perform is not significantly better than the path of rescission.In practice,the nature of the right of restitution,the nature of the right of damages and the scope of compensation are controversial in the process of the application of the bankruptcy administrator’s right of rescission.The restitution claim enjoyed by the creditor whose contract has been terminated should be regarded as a general bankruptcy claim rather than a mutual-benefit claim,considering that the restitution clause in Article 42 of the Enterprise Bankruptcy Law cannot be applied because it occurs before the debtor enters the bankruptcy procedure.At the same time,considering that the contract counterpart who has fully performed the payment obligation does not yet enjoy special protection status,the restitution claim should be regarded as a general bankruptcy claim rather than a mutual-benefit claim.Due to the difference between the protection objects in the context of bankruptcy law and the general legal context of termination of contract,no matter what the category definition of the right to claim damages in the civil law is,it should be recognized that the right to claim damages in the bankruptcy procedure includes the interests of performance,and if the damages claimed by the creditor and the liquidated damages do not have the possibility of unjust enrichment in essence,they can claim at the same time.For the sale contract registered with advance notice,the judicial practice has not given enough protection at present,most cases deny the special protection status of the contract registered with advance notice in bankruptcy proceedings.However,first of all,what the notice registration system itself prevents is the risk of future property right changes.The incomplete construction does not automatically become the reason for the automatic invalidation of notice registration.Secondly,the notice registration system itself contains the balance of rights and obligations between the parties,which should not be destroyed in the bankruptcy process.Thirdly,the omission of special protection of the advance notice registration system in the Enterprise Bankruptcy Law is a legislative loophole.The reason is that the legislation of the Enterprise Bankruptcy Law is earlier than the creation of the advance notice registration system.To sum up,the bankruptcy administrator’s right to rescind should be limited in the sale contract registered with advance notice.If the subject matter pointed to advance notice registration has been completed when the debtor enters the bankruptcy procedure,the right holder of advance notice registration should be allowed to exercise the right similar to the right to take back and request the bankruptcy administrator to assist in completing the registration of the change of the real right of the subject matter.On the contrary,if the subject matter has not been completed when the debtor is bankrupt,the notice registration right holder shall be allowed to claim the principal and interest already performed as a beneficial creditor’s right first.As for the real estate lease contract,the courts generally believe in judicial practice that the lease contract should be regarded as a contract to be performed,whether the lessee still has the obligation to guarantee the integrity of the lease item and return the lease item after the lease expires,or the lessor has the continuous obligation to keep the lease item in line with the agreed purpose during the lease term.The receiver is certainly entitled to exercise the right of dissolution.However,since the distinction between principal and subordinate contracts only serves as guidance in the theoretical sense of civil law,it is not possible to directly give clear and objective criteria for the judgment of performance degree and performance effect in the context of bankruptcy.It is more appropriate to grasp whether the performance status and performance nature of the lease contract have a substantive impact on the fundamental purpose of the contract.Obviously,the foregoing attached obligations do not meet the judgment criteria.Under normal circumstances,the lease contract should be regarded as a contract that has been performed by one party,excluding the application space of the bankruptcy administrator’s right to rescind.