Bankruptcy Law In Comparative Perspective Executory Contract System Research

Its special provisions in the bankruptcy law change the contract rights of the two parties to a great extent. "Executory contract" in bankruptcy law has restricted the scope of application of the principle of "the freedom of contract" with Compulsory Rule in its own scope of application. The bankruptcy law is stipulated in this way, so as to realize the legislation goal of bankruptcy law, and the legal theory basis can be explained to the realization of Material Justice, balancing the benefits of parties of contract.In this thesis, I uses the historical analysis, comparative analysis, economical analysis and positive analysis of research methods, comprehensively surveys the general definition of the term "executory contract" and the legal theory basis of "executory contract" adjusted by the bankruptcy law, briefly introduces related provisions on bankruptcy law of the United States, Britain, Germany, and Japan. And give some legislation advices on the executory contracts based on the comparison and analysis the disadvantages of applicable bankruptcy law of our country.The whole thesis consists of preface, main body and conclusion.The preface puts forward the question and gives the purpose and content of writing this thesis.The main body includes four chapters:Chapter 1 has mainly surveys the most representative theory and judicial practice of the United States bankruptcy law in defining the term "executory contract". Focusing on several standards with general application and considerable influence, they are Professor Countryman's definition, the standard affirmed by Case "Harms", the standard affirmed by Case "Booth". And then I introduce the related source of law of executory contracts in our country's legal system and analyze the inherent relation between the present academic definition of "executory contract" and Professor Countryman's definition.Chapter 2 deeply elaborate the law foundation of executory contract adjusted by the bankruptcy law, mainly from several aspects, e.g. the bankruptcy system's goals and functions, limitations to the principle of "freedom of contract" by the bankruptcy law, the performances and principles of executory contract adjusted by the bankruptcy law and so on. All of these provide the prepositive points of view for the following analyses. Chapter 3 mainly chooses institutional arrangements to executory contract on bankruptcy law of the United States, Britain as the common law system's representative as well as bankruptcy law of Germany, and Japan as the civil law system's representative. And more details and analyses are given in this chapter.Chapter 4 analyzes the current situation and existing problems on China's bankruptcy law, and proposes countermeasures to be perfect on the basis of the previous chapters'study and comparison.The conclusion part, I generally reply to some questions which mentioned in foreword part and body part, and give a brief introduction for this paper's characteristic places, innovation places and deficiencies, and finally explain the original intention and goal of research on this topic. And I hope this paper's discussion can provide more substantial theoretical base for the coming bankruptcy legislation revolution.