The Research Of Exemptions To Bankruptcy Avoidance

Bankruptcy avoidance system is aimed at two targets: one is to protect bankruptcy estate while the other is to realize creditors'equitable liquidation. Bankruptcy avoidance system generally covers preference liquidation and fraudulence transfer. However, this system covers those transactions which are already executed, imposing negative effects on the safety of transaction. At the same time, it has such defects as uncertain required time period and causing harm on the credit of debtor, therefore it is necessary to introduce an exemption system to bankruptcy avoidance in order to impose limitation and modification on it. Both European legal system and the Anglo-Saxon law system provide for the exemption system to bankruptcy avoidance, among which the U.S system is the most mature and complete. This article classifies the transactions to be exempted and make specific analyses on the reasons and requirements of the most common transactions to be exempted from avoidance—ordinary business transaction, finance transaction, and secured transaction. The requirements for small amount exemption and other exemptions are discussed as well. Since there is only one article, that is, article 32, in China's bankruptcy law talking about bankruptcy avoidance, which is too general to clearly provide guidance for people's transaction, it is both of theoretical and practical importance to perfect the exemption to bankruptcy avoidance system. This article proposes to perfect the exemption to bankruptcy avoidance system in China along two roads—to specify typical exemptions to bankruptcy avoidance and set up judicial explanations accordingly.This article is composed of five chapters:Chapter one deals with basic theories. First, it defines the bankruptcy avoidance system and clarifies the concept, scope, requirements and importance of bankruptcy avoidance system, laying out the foundation for the later discussion of the origin of this system. Second, it traces the origin of the system—the defects of the system itself. Based on this analysis, it defines the nature of this system and introduces different regulations of major legal regimes. Last, it discusses the value and purpose of this system from the perspective of bankruptcy law.Chapter two provides a detailed study on the major types of exemptions to bankruptcy avoidance. Based on the U.S bankruptcy law and from the perspective of the logic structure of transactions, it classifies the exemptions into three categories-- ordinary business transaction, finance transaction, and secured transaction. The reasons of exemptions and the requirements of each transaction are specifically discussed.Chapter three deals with other exemptions mainly include small amount transaction and other three situations. The reasons of exemptions and the requirements of each transaction are specifically discussed. It also leaves room for evolution of exemptions to bankruptcy avoidance since the bankruptcy transactions are always moving forward with new cases emerge.Chapter four deals with the legal enforcement of exemptions from the perspective of bankruptcy estates, debtor and creditors. Finally, chapter five makes a detailed analysis on the exemption to bankruptcy avoidance system specified in China's bankruptcy law and points out its defects. It proposes to make legal stipulations for typical exceptions in bankruptcy law and make certain legal explanations accordingly.