Study On The Right Of Bankruptcy Rescission

As a special law of civil law,the basic function of bankruptcy law is to achieve fair payment. In order to restrict various behaviors of evading creditors and to protect the interests of creditors, bankruptcy law has established a legal system of the right of bankruptcy rescission to make the properties based on these harmful acts return to the bankruptcy property. However , the regulations about the right of bankruptcy rescission stipulated in the Law of the People's Republic of China on Enterprise Bankruptcy (for trial) is still undeveloped, which falls behind developed legislation of other countries. And our theoretical researches on the right of bankruptcy rescission are not enough in comparison with those abroad. In contrast with that, there are a lot of problems in judicial practices such as withdrawn funds and bankruptcy fraud. So it is necessary to do further research on the right of bankruptcy rescission. This dissertation discusses the nature, object, exertion of the right of bankruptcy rescission, and puts forward related suggestions, hoping that it will contribute to the improvement of our bankruptcy legislation. The whole dissertation is composed of 3 chapters:Chapter1 introduces the right of bankruptcy rescission. This chapter mainly introduces the concept and evolution of the legal system of the right of bankruptcy rescission, and analyzes its theoretical foundation of the legal system and studies how to balance their various interests. Based on this analysis of the nature of the right, the chapter discusses the relationship between the legal system of the right of bankruptcy rescission and the legal system of invalid act, and also the relationship between the legal system of the right of bankruptcy rescission and the legal system of the cancellation right of creditor in the civil law.Chapter2 explores the object of the right of bankruptcy. The bound of revocable acts is the key point of the legal system of the right of bankruptcy rescission. As the core part of this dissertation, this chapter discusses the object of the right of bankruptcy rescission. Based on the comparison of the legislation of typical countries, this dissertation considers that our legislation should adopt the legislation which conjoins with generalization mode and enumeration mode. Afterwards, this chapter analyzes the elements of the right of bankruptcy rescission and discusses two basic types of revocable acts which include fraudulent acts and preferential acts. This chapter focuses its discussion on some important problems, such as subjective intention of revocable acts, critical period, exceptions, etc.Chapter3 researches into the realization of the right of bankruptcy rescission. This chapter discusses the right of bankruptcy rescission considering the operation of the legal system, and mainly focuses on some problems such as the subject of the right of bankruptcy rescission, the exercising method and the legal effect of the right of bankruptcy rescission. This dissertation holds that the bankruptcy trustee should be the subject of the right of bankruptcy rescission, the respective(s) of creditors may exert the right if necessary. This dissertation also holds that the bankruptcy trustee should perform the right through the way of suit. Concerning the issue on the legal effect of the right of bankruptcy rescission, this chapter analyzes it in three aspects such as invalidation, restitution and the effect to the transferee(s).