On The System Of Bankruptcy Revocation Rights

Enterprise Bankruptcy Law of the People's Republic of China has been put in force for over three years, since it was issued on June 1, 2007. Compared with the original Enterprise Bankruptcy Law (Trial Implementation), the new law learns some advanced experience from the bankruptcy legislation of other countries, and establishes the bankruptcy law system of trustee in bankruptcy, enterprise compromise and reorganization, etc. In the new law system, the vague understanding existing in the theoretical and practical circles in the implementation process of the original law, is clarified by the design on the system of bankruptcy revocation rights; the system of voidable bankruptcy and the system of bankruptcy revocation rights are separated; the act of avoiding the debt by bankruptcy is powerfully stricken; the property liability of the debtor is maintained; the interests of the creditor and the debtor are equally protected; the justice and efficiency as well as the equality and integrity of the bankruptcy law are reflected; and the healthy development of the market economic order of our country is strongly defended.In this thesis, through the elaboration of the concept and nature of bankruptcy revocation rights, the constitutive requirements and means of exertion are analyzed; through the introduction of the evolution and current legislation of bankruptcy revocation rights at home and abroad, the necessity of improving the system of bankruptcy revocation rights of our country is expounded, and the suggestions to complete the system are offered. This paper is divided into four parts.In the first part, the meaning of bankruptcy revocation rights is first of all identified. Bankruptcy revocation rights are the rights of the exerciser, after the beginning of bankruptcy proceedings, to apply the court to withdraw the debtor's misconduct of deceiving and harming the interests of the creditor during the critical period before the petition is accepted. Bankruptcy revocation rights derive originally from Roman Law, which are set up in order to protect the interests of the creditor, on the basis of the legal principles of justice and integrity. Next, the distinction and the relation among the revocation rights of bankruptcy law , civil law and contract law are further analyzed and the continuously development process of the system of bankruptcy revocation rights is defined. These are used as the opening theoretical basis of this paper. Last, the different cognitions on the nature of bankruptcy revocation rights in present theoretical and practical circles are introduced. The theories of right of claim, right of formation, responsibility, and eclecticism, etc. are founded on different bases, but the start and stay point of all theories should be based on maintaining the property liability of the creditor and maximally ensuring that revocation rights are exercised by the creditor or the manager.In the second part, the constitutional conditions of bankruptcy revocation rights are analyzed from subjective and objective aspects. The subjective constitutional conditions of bankruptcy revocation rights should distinguish the debtor's paid acts from unpaid acts of disposing property or interests: The paid acts should be on the conditions of subjective malice of the debtor and the beneficiary, while, as for the unpaid acts, subjective malice of the party concerned is usually not taken as a standard in the countries all over the world. From the perspective of protecting the creditor's interests, China uniformly adopts the judgment rule of form, i.e. the foundation and exercise of revocation rights are not on the conditions of the existing subjective malice of the beneficiary. Among the objective constitutive conditions of bankruptcy revocation rights, it is necessary that the creditor's interests are damaged and the act happens during the critical period before the beginning of the bankruptcy proceedings. The act of the debtor to damage the interests of the creditor should be identified in two criteria: First, the debtor's property is taken as a criterion, i.e. the interests of all creditors are damaged and the act which is described as fraud; second, the position of the creditor is taken as a criterion, i.e. the individual creditor is paid and the act is described as preferences. Regulations on the length of the critical period of bankruptcy are different around the world. According to the different natures and kinds of revocable acts, it is divided into unitary and plural system. The object of bankruptcy revocation rights is the deceptive and harmful act to dispose property and interests.In the third part, the conditions of exercising bankruptcy revocation rights are focused on. In procedural conditions of exercising revocation rights, the manager should be the main body of exercising rights; the debtor the defendant; if concerning money recover, the beneficiaries should be listed as the co-defendant; other interested parties as the third party. The manager should terminate exercising revocation rights by the end of the bankruptcy proceedings. If revocable acts are found within two years after the ending of the bankruptcy proceedings, revocation rights can be exercised within the frame of the law by the creditor. As for the substantive conditions of exercising revocation rights, the acts of free transfer of property include the transfer of both tangible and intangible property, and contain both the positive and negative acts of the debtor. The sorts and range of free acts of the debtor are limited by the free transfer of property in the bankruptcy law of our country. Generally, the act of abandoning the claim should belong to the gratuitous acts of the debtor. The composition of revocation rights is affected by whether the abandoned claim is due or with provisos. The act of trade at an unreasonable price is the debtor's act of violating the regular principles of market economy and buying commodities or services dear and selling them cheap; unsecured property bond offers the act of securing property, violating the equal compensable principle of the ordinary creditor's rights, which is also described as partial act of guaranteeing. Whether partial guarantee is constituted, is mainly defined by whether the foundation of claim is synchronized with the foundation of guaranteeing; the act of advanced acquitting of undue debts is the act of acquitting before the time of performance is due and the act of acquitting should happen within the regulated critical period; the act of individual acquitting in times of crisis should be the act of acquitting the creditor unsecured by property, and the act of acquitting the creditor secured by property is not included; and the act of individual acquitting is the acquitting of established claim, and the act of simultaneous performance such as immediate settlement is not included. By analyzing the substantive conditions of exercising revocation rights, all sorts of revocable acts in the bankruptcy practice are accurately mastered.In the fourth part, the development status of overseas bankruptcy revocation rights is introduced; the distinctions of the system of invalid act and revocable system between British and German bankruptcy law are compared; the legislative pattern of the doctrine of retroaction and non-retroaction on the bankruptcy declaration in bankruptcy law, and the transformation from emphasis on protecting the interests of the creditor to emphasis on protecting the interests of both the creditor and the debtor in the developing process of bankruptcy law , are identified. Through the introduction of the dual pattern of the system of invalid act and the revocable system in the bankruptcy legislation in our country, the significance of the progress of the bankruptcy legislation in our country is stated. In the meanwhile, by learning advanced legislation experience from abroad, the content to be improved in the revised and matching regulations of the bankruptcy law in our country is proposed, in terms of regulating interception clauses of revocable acts, distinguishing the serious degree of the nature of revocable acts, setting up different critical periods, regulating the extinctive prescription of exercising revocation rights, etc.