On Bankruptcy The Right Of Revocation

The right of rescission in insolvency law is an important system of protecting the interests of the whole creditors. In critical period before beginning bankruptcy procedure, the debtor often does harm to creditors. The right of rescission can become these harmful acts invalid and make the property interests coming from the harmful acts return to the property of estate. Just because it can improve the proportion of discharge and realize the object of protecting the interests of the creditor, so it is celebrated by the legislators in different countries. Nearly every country keeps the room to apply to it in insolvency law. But it is not very easy to get a clear understanding of the right of rescission in theory or in practice because the objects of the right of rescission are various, their concepts are difficult and extensive. As far as the current studies of the right of rescission, our researches are not enough in comparison with those abroad whether legislatively or theoretically. This thesis will study the right of rescission according to the writer's personal understanding and analysis. Firstly, through the cognizance of the 35th provision in China's Insolvency Law of Enterprise (proposed), the writer proposes the issue, the right of rescission in insolvency law; then based on the new understanding of the existent rationality and systematic value of the right of rescission, the writer tries to redesign the elements, scope, exercising method and period of the right of rescission and so on in order to improve our insolvency legislation.There are all together six parts in this thesis.Part one, Value of the Right of Rescission, mainly introduces the concept, existent rationality and systematic value of the right of rescission. The right of rescission and the cancellation right of creditors in civil law have same origin and similar concept. But the right rescission is contributed to the field of insolvency law, so it is different from the cancellation right of creditors in civil law. In insolvency law field, the system of invalid act plays the same role with the system of the right of rescission. By comparing with the two systems, the writer deems that the system ofthe right of rescission keeps the tendency of development of modern insolvency law, it is more reasonable. The basic value of the system of the right of rescission is justice. In the writer's eyes, the justice is particularly embodied in The Principle of Good Faith, The Principle of Equal Paying-off and The Principle of Autonomy of the Will. When these principles are in conflict, we should comprehensively take care of the interests of the creditor, the debtor and the relative people, so as to make the most basic justice value of the right of rescission come true.Part two, Subject of the Right of Rescission. This part mainly discusses the four theories of the subject of the right of rescission: Bankruptcy Financial Group Theory, Bankruptcy Debtor Theory, Bankruptcy Creditor Theory and Bankruptcy Trustee Theory. The writer thinks that the bases of these four theories are not sufficient, the subject of the right of rescission is rational creditors. Rational creditors are those good and honest creditors who look the whole creditors' interests as the base of interests of themselves, don't make inroads on the interests of other creditors. Otherwise, this part also introduces the relationship between exercising subject and belonging subject of the right of rescission. The writer thinks the relationship between the both is legal.Part three, Elements of the Right of Rescission, is one of important problems in the system of the right of rescission. As to the elements of the right of rescission, scholars in different countries have different opinions. By investigating the legislation of four typical countries (England, America, Germany and Japan), the writer holds that the legislation mode which is the connection of abstraction and concretion should be adopted in our country. Through analysis, the writer also thinks that the general elements of the right of rescission consist of three parts: 1. There are harmful acts to the interests of the creditor; 2. The harmful acts happen in critical period before the beginning of bankruptcy procedure; 3. As to pricey acts, the interested parties should have bad intentions. Among the three points, there are some problems which should be confirmed, such as the orientation of harmful acts, the length of critical period, judging criterion of the interested parties' bad intentions, etc. The writer promotes some opinions about these in the thesis.Part four, Scope of the Right of Rescission, elaborates which acts are the objectsof the right of rescission. It's also an important issue in the system of the right of rescission. There are various objects of the right of rescission. Following the development of the society, kinds of new acts will appear. According to insolvency law in each country, the part mainly discusses five ordinary rescinded acts: rescinded procedural acts, transfer acts, gratuitous acts, low-price deal and preferential acts. How to confirm the five acts? The writer makes more detailed analyses in the part.Part five, Exercising of the Right of Rescission. Based on dynamic analysis, the writer mainly dwells on a few problems which will happen during the exercising of the right of rescission, such as the exercising method, period and effect of the right of rescission. The writer also gives her opinions.Part six, Improvement of the Right of Rescission of China's Legislation. Instead of the system of the right of rescission, our current insolvency law set up the system of invalid acts. The new insolvency law draft pays attention to this circumstance, stipulates the invalid act and the rescinded act distinguishingly. But the rationality of the stipulation is worth to consider. In addition, the new insolvency law draft doesn't stipulate the right of rescission concretely, systematically and comprehensively. After pointing out the shortcomings of the right of rescission in our insolvency legislation, the writer prompts some constructive suggestion.