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The Executory Contract On Insolvency Law

Posted on:2010-06-21Degree:MasterType:Thesis
Country:ChinaCandidate:Z W LiFull Text:PDF
GTID:2206360272993463Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Executory contract is an important legal system in insolvency law. With its special provisions in the insolvency law,executory contract,in certain degree,changes the contract rights of the two parties.This article focuses on the executory contract in the insolvency law.Starting from analyzing the definition of the executory contract,the author discusses reasons why insolvency law should enact special regulations of executory contract and the principles to deal with such contracts.By comparing the rules of PRC with the equivalent part of insolvency law in US,the United Kingdom,Germany and Japan,the author analyzes the questions based on China's current insolvency law on executory contract,advances legislative proposals to improve executory contract of our country's legal system.In this thesis,the author uses the benefits analysis,comparative analysis of research methods,makes a specific study from the national legislation and judicial practice of the bankruptcy law on executory contract.The whole thesis consists of preface,main body and conclusion.The preface puts forward the question and gives the purpose of writing,this thesis with simple demonstration and exposition.The main body includes four chapters:Chapter one comprehensively surveys the theory and judicial practice of the United States bankruptcy law in defining the term "executory contract".It emphasizes on Vern Countryman's definition,functional approach and cost-interest approach of executory contract.And points out that Vern Countryman's definition,which proposed that an executory contract be defined as "a contract under which the obligation of both the bankrupt and the other party to the contract are so far unperformed that the failure of either to complete performance would constitute a material breach excusing the performance of the other",is more reasonable,as it closely related to the objectives of insolvency law in adjusting the executory contract.Comparing with our country's relevant concept in insolvency law,the author points out that "the contract which both the debtor and the other party did not finished their performance" in "Enterprise Bankruptcy Law" is consistent with the Countryman's definition of "executory contract".Chapter two further studies the objectives and principle of the bankruptcy law in adjusting executory contract.From analyzing the conflict of laws and rights on executory contract,the author unfolds the discussion about the objectives and principles of the bankruptcy law in adjusting executory contract,and contends that there are three targets for the adjustment.First,to guarantee creditors' maximal benefits overall is the primary objective;Secondly,to save debtor from crisis helps the debtor to achieve rehabilitation;Thirdly,to consider the interests of the other party when necessary,and decrease the social costs in every possibility.Chapter three specifically introduces institutional arrangements to executory contract on insolvency law of the United States,Britain, Germany,and Japan.Focusing on two major aspects,it introduces the general provisions for executory contract and the special executory contract adjustment of these four countries in detail.Chapter four analyses the current situation and existing problems on China's insolvency law,and proposes countermeasures to be perfect on the basis of the previous chapters' study,and on this basis draws conclusions in this thesis:it is recommended that we base on the correspondence of the conflict of rights,actualize the objectives and principles of the bankruptcy law to adjust executory contract,add the special executory contract adjustment,exert other complementary legal system to make up for our lack of related systems on insolvency law.We can perfect the adjustment system of executory contract in insolvency law through the systematic adjustment,pursuit the balance of interests on executory contract.
Keywords/Search Tags:Executory Contract, Assume, Rejection, Transfer, Balance of Interests
PDF Full Text Request
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