The Preferential Transfer In Bankruptcy Law

Different from the traditional theory which analyses preferences and fraudulent transfer under the framework bankruptcy revocation system,it is argued that preferences are independent concept in the bankruptcy law and have their own characteristics and profound theoretical base.Therefore,based on the goals of the preference law,this article discusses its jurisprudential significance and assesses the law's efficiency in achieving those goals. Related overseas bankruptcy designs will also be presented and analyzed for need of China's future system in the concern of preferences.In the end, new proposals will be presented for the future design of China's preference law.The article consists of four parts.Following is a brief explanation.Partâ… :the introduction about the preferences.In this part, the author introduces the avoidance powers in the insolvency law and the right of rescission in the civil law,and also discusses the difference between the preferences and the fraudulent transfer.Partâ…¡:the analysis of the goals and the value of the preferences.The author analyses the questions from three aspects:Firstly,the author insists on that the purposes of the preferences is to realize equality among the creditors ,and to maximize the estate from which equal distribution is to be made.Secondly,this author presents a detailed discussion about the jurisprudential significance of the preferences.It is held that the reason for designing of the preferences is to achieve the fair value.One is the correcting-fairness principle which redresses the unfair consequences as a result of the general allocation rules of rights and obligation,the other is the opportunity-fairness principle for the realization of the substantive equality.Thirdly,the author analyses the efficiency of the preferences.It is argued that judging the soundness of the contemporary preference law is not only to consider its equality,but also to consider whether it efficiently achieves its goals,that is to deters the preferential behavior and the debtor's tendency to over-invest,and to reduce the creditor's incentive to accept or seek a preferential transfers.Therefore,the article discusses this question from three aspects,including the effectiveness, institutional costs and the investment incentives.Partâ…¢is about the comparative analysis of preferences.By comparing UNCITRAL(The United Nations Commission on International Trade Law )The Legislative Guide on Insolvency Law and related overseas bankruptcy designs such as United States, Germany, and China's Taiwan region,the author points out the deficiencies of China's current bankruptcy law.Partâ…£:the regulations and suggestions to the preferences in China.To achieve the purpose of the preferences, it is suggested that the following aspects should be improved.Firstly,the creditor's subjective malicious should be acted as the subjective element to avoid preferences,and establish the 'malicious presumption'system.Secondly, typical creditor defenses should be included.Thirdly,the 'preference period' should be uniform. Then,a voluntary preference including an additional relationship, such as blood or friendship, between the debtor and creditor should be imposed on more strict regulation.Fifthly,the reasons for bankruptcy should be one of the elements to avoid preferences.