| Article 18 of the Enterprise Bankruptcy Law expressly grants the insolvency administrator the right to rescind executory contracts in order to maximize the bankruptcy estate.However,based on the consideration of balancing the interests of contractual counterparty and respecting non-bankruptcy law norms,it is necessary to restrict this right of rescission from three levels: the effect of rescission,the elements of rescission and the exclusion of rescission.At the level of limitation of the effect of rescission,with reference to the statutory rescission norms,the rescission effect can be divided into two levels:compensation for damages and return of the performance part.As far as the former is concerned,the basis of the right to claim damages is a special provision of the law and should be characterized as an ordinary claim.When the parties have no special agreement,the scope of damage compensation includes actual losses and loss of benefits,and it is calculated from the time the bankruptcy administrator terminates the contract..When the parties have an agreed liquidated clause or the clause of the liquidated deposit,the validity of these clauses should be affirmed to restrict the right of the bankruptcy administrator.As far as the latter is concerned,it is necessary to comprehensively examine the application of the bankruptcy set-off system and the common benefit debt system by taking the comparison of different cleansing modes as the main line,so as to achieve the effect restriction of the right to rescind the sales contract.Specifically,it should be widely acknowledged that bankruptcy offsets the application of the scenario of the sales contract to be resolved,but it is not appropriate to upgrade the claim for unjust enrichment return of the counterparty to a common benefit claim.In the choice of "eliminating" executory contract model,it is not advisable to be too aggressive,and the contract is directly given to the right of the contract.Instead,it is advisable to adopt a compromise theory in the recission mode.In other words,the rescission of the contract to be performed does not affect the validity of the part already performed,but only creates a new debt for restitution,and the unperformed part is no longer performed.At the level of restrictions on the requirements,the prerequisites of rescission and the rescission standards need to be considered respectively.As far as the former is concerned,the target of the right to to rescind the sales executory contract is limited to the "executory contract",that is,the mutual contracts in which none of the parties’ payment obligations have been fulfilled.However,it is not so important to learn whether the contract is " executory " when the bankruptcy administrator chooses to rescind contract.In the latter case,the exercise of the bankruptcy administrator’s right to rescind should be subject to the principle of maximization of the estate.However,in order to balance the interests of the counterparty to the contract,it is necessary to restrict the principle of maximizing bankrupt property with overweight inspection,that is,the administrator cannot rescind the contract if the continued performance will not lead to a decrease in the absolute value of the estate.At the same time,in order to rationalize the liability risk of the bankruptcy administrator,business judgment rules should be introduced to reduce the risk of practice of bankruptcy administrators.The above restrictions are all restrictions based on the recognition of the administrator’s right to rescind,but in some cases,the administrator’s right to rescind cannot be excluded as insufficient to achieve the regulated purpose.Therefore,in the case of the seller’s bankruptcy,in order to respect the protection of the buyer’s reasonable expectations under the non-bankruptcy norms,Article 18 of the Enterprise Bankruptcy Law is purposefully limited in the sales contract with retention of title,the sale contract of the house registered with advance notice and the consumer purchase contract without prior notice registration,excluding the right of the bankruptcy administrator of the seller to rescind the sales executory contract. |
