Research On Option Of Unfulfill Contract On Bankruptcy Proceedings

Served as a method to control social wealth, contract has significance under the economic market. When a company is in bankruptcy proceedings, there are lots of contracts to deal with. When an enterprise enters bankruptcy proceedings, there will remain large quantities of contracts to deal with, part of which need creditors to claim the creditor’s rights as the creditors have performed the contract while debtor haven’t. And if it turns the creditors who have nonperformance, but debtors have performed, then the rights should let bankruptcy administrators assert. Usually, when it comes the situation that both sides haven’t performed the contract, the law will endow bankruptcy administrator the option to decide continue the contract or not. It’s the administrator to decide to rescind or continue to perform a contract. The legislations about option to the performance of the contract can be referred at the18th terms as well as the42nd,53rd and69th in Enterprise Bankruptcy Law of our country. But in general, those rules are too scattered and short, which requires further discussions.The first part of this essay introduces the value basis and the balance of benefits of the unfulfilled contract option. On the one hand, it analyses the value basis of option with considering the legislation aim of bankruptcy law.On the other hand, regarding the option as a mechanism to the debtors’advantages, this essay holds the view that, administrator has to balance the advantages when making option.The second part of this essay analyses the state of the unfulfilled contract and what should the unfulfilled contract be in the bankruptcy proceedings. The highlight of this part is the analysis, of Germanic bankruptcy law of the destroyed theory, to show the idea that the Chinese enterprise bankruptcy law is very similar to it. And as our enterprise bankruptcy law combines liquidation procedure and revival procedure, this part try to distinguish liquidation procedure and revival procedure as well as demonstrate the difference of the contract state between liquidation procedure and revival procedure. With these analyses, a view that the time limit of the option should be considered has been put forward in this part.The third and forth part of this essay devote to the exercise of rights. The two parts, from the angle of practice and legislation, analyses and discuss in detail about the four aspects of subject, object, procedure and effect. The fifth part is an epilogue in which a simple summary about points of this essay has been made.