| "Pacta sunt servanda" is a fundamental rule of the traditional theories of civil law. However, considering that practical lives are always complicated and changable, special rules and regulations, such as "the principle of changed circumstance in the performance of contracf'in the continental legal system, frustration of purpose of contract in the Anglo-American law and various systems concerning rescission and termination of contract, are established for social substantive justice,balancing the benefits of parties of contract.Generally speaking, institution of contract rescission equally vests both parties with the right to discharge a contract. It is easy to understand it in the condition of discharge by agreement. And when the reason for legal rescission is either act of god or default, the party who has the right to discharge a contract is the observant party. In the event of adjudication of bankruptcy, things are different.As to other than long-term and continual contracts, law doesn't give the right of discharging the contract to the observant party,but to the receiver of the defaulting party -trustee. At the first glance, this arrangement does not correspond with principles of law. In fact,it has it's own inner-logicality,as there are specialities in the balance of interests of parties to a bankruptcy.There so many kinds of contract that legislation can not regulate the effect of bankruptcy announcement for all contracts. Thus,we should set up some general principles. Due to great difference between long-term and continual contract in nature and substance, applying a principle stipulation uniformly may bring out substantial un-equality, even breach the basic principles of civil law and common rule of legal justice.Reviewing current bankruptcy law of China, we may find that the regulations concerning the effect on contracts as a result of adjudication of bankuptcy are over-simplified. Because the current law doesn't provide the general rule by which the trustee exercises the option or special treatments for special kinds of contracts, which obviously can not meet the requirements of economical development and needs improvement. Theoretical research is always prior to legislation. Combining therelevant provisions under new draft of Act of Bankruptcy, the author of this essay attempts to bring forward his own opinions on the issues with a comparison method. This thesis is consists of five parts, about forty five thousand words.Part One is an analysis on the basic concepts and the relevant legal theorie. The former includes the definition of terms such as "executory contract" and "rescission of contract",and the latter mainly focuses on the particularity of the trustee's dealing with executory contracts in the condition of adjudication of bankruptcy, and on the legal theory basis of this special legal institution.Part Two of the paper surveys the effect on executory contract of adjudication of bankruptcy with the method of comparison. It includes the provisions of these countries such as the American, British, German and Japanese bankruptcy laws,and the conrresponding analysis on these provisions. Upon this traverse comparison,we may find out run-of-mill rules and regulations.Part Three mainly deals with the rules, terms, and legal consequences of the trustee's exercise of the option. In this part, the issues related to handling of contracts other than long-term and continual ones will be amplified systematically and comprehensivelly.Part Four focuses on the effects of adjudication of bankruptcy on special kinds of contracts, such as lease agreement, finance lease, sales contract with retention of title, insurance of contract and contract of employment, which are all common contracts of typical and special types.Part Five contains the defects of the existing law and the author's suggestion on the legislation, which can be divided two sections: the fisrt section mainly deals with the imperfectness of current law and its origin, and the second section, as an end of this paper, pres... |
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