Comment On Right Of Bankruptcy Offset

Offset is that two parties in debt with each other, pay off the counterpart's debt with his debt, as to eliminate the debt both sides involved in the equal amount. Offset is one of the ways that eliminating debt in the civil law, the No.99 and No.100 of our "Contract law" regulate the legal and promissory right of offset separately, which are" if the two parties who have due debt mutually and sort and quality of object in debt are the same, either party can eliminate the debt of opposite side with owing of his, except the case that cannot be paid off according to legal rules and nature of contracts .""two parties who have debts mutually, sort and quality of object in debt are different, they also can paid off by consultations."Right of offset in the bankruptcy law comes from the one in the civil law and gets its extended appliance in the bankruptcy law, which means that when the creditor owes the debtor a debt before a bankruptcy case is accepted, no matter not only the kind of his claims and debt is the same, but also the claims and debt are attached to a certain period, he can also use his right this bankruptcy claims to pay off the debt owed to the debtor without according to the procedure of bankruptcy. right of bankruptcy offset has an important effect on the implement of bankruptcy law.Although right of bankruptcy offset comes from the one in the civil law, it also has some differences in its scope and conditions for appliance. Performing of right of bankruptcy offset must be provided with certain elements, according to the law strictly.Exercise of right of bankruptcy offset in the practise of juristical adjudication is strictly limited and cannot be expanded arbitrarily. In the procedure of bankruptcy, right of bankruptcy offset should be limited as to prevent the situation that when a debtor has financial difficulties, often appears the phenomenon that creditors owe debtors a debt maliciously ,or debtor's debtor purchases the creditor's claims deliberately, together with protecting the equity between creditors. In this thesis I generalize limited conditions of exercise of right of bankruptcy into five aspects, respectively means legal regulation, funding obligations, particular convention, mandatory effect of claims and principle of honest. These limited regulations' total target is avoiding that parties abuse the right of bankruptcy offset and inappropriate appliance of offset system, preventing damage to principle of equity and parties' legal interest. In addition, this thesis has brought into an practical case related to the exercise of right of bankruptcy offset, as to illustrate the limited situation of right of bankruptcy offset in practise and some of my legislative thinking.