Practice And Reflection Of Bankruptcy Rescission System

Bankruptcy rescission system is a strong expression of fair repay for creditors andbalance of interests. The regulation of fraudulent acts and preferential transformationnot only maximizes the property interests of the creditors, but also ensure equality forrepayment of creditors. The new bankruptcy law distinguishes bankruptcy rescissionsystem and bankruptcy invalid behavior, which is a big step forward for bankruptcyrescission system. In nearly six years after the implementation of the new bankruptcylaw. We need to combine the implementation of practice and internal demand toexamine the bankruptcy rescission system, moreover, China’s legislation indeed fallsbehind the foreign advanced legislation, so we need to continue to study and reflecton the system. Through many cases in practice, the article is intend in analyzing somesubstantive and procedural flaws in the bankruptcy rescission system and puttingforward my own legislative proposals, hoping to promote bankruptcy rescissionsystem.The essay contains four chapters.Chapter One is an overview on bankruptcy rescission system, mainly on the origin ofthe system including the history and legislative original intention, summed up the significance and value of the system which are the principles of fair repay forcreditors and balance of interests. Then the right of rescission in civil law and theright of rescission in bankruptcy law were compared to sum up similarities anddifferences between two different systems and the different characteristics of the twosystems.Chapter Two is the analysis of the problems in bankruptcy rescission system inpractice from the perspective of the entity. Relevant case in practice leads to an entityproblems, mainly on refinement and extension of analyzing criteria of revocablebehaviors and the scope of regulation. Bankruptcy rescission system rules are notdetailed enough especially on the objective and subjective criteria of revocablebehaviors. The courts cited the provisions of the right of rescission in civil law to thejudgment of bankruptcy rescission cases. The paper did the corresponding research.The refinement and extension of the scope of regulation is mainly in two ways:revocable behaviors related to related transactions need special, strict regulation,investigate whether the effective judgment and execution may revoke.Chapter Three is the analysis of the problems in bankruptcy rescission system inpractice from the perspective of the procedure. The paper analyzes the two majorproblems: the subject of proceedings and the procedures for the exercise of the civilright of rescission in the insolvency proceedings. There are different views on thesubject of proceedings during the practical operations: sue in the name of insolvencyadministrator or debtor. The paper argues that insolvency administrator has litigationqualification. The rescission is to apply for the collusive behaviors of debtor and athird person or individual creditors. So it should not be sued in the name of the debtor.Related to the exercise of the civil right of rescission in the insolvency proceedings,the paper argues that it should not be excluded. But provisions of the correspondingprocedure should be detailed, otherwise difficult to operate in practice.Chapter four is some suggestions on the improvement of bankruptcy rescission system. In the process to improve the system, we should follow the principles of fairrepay for creditors and balance of interests. Specific improvement measures areproposed including a clear behavioral criteria, special regulation for revocablebehaviors related to related transactions, the insolvency administrator ’s pay incentives,Creditors relief mechanism etc.