A Discussion On The Settlement Of Executory Contracts In Bankruptcy Law

Enterprise Bankruptcy Law of the People’s Republic of China is August27,2006release, June1,2007implementation. With the impact of the financial crisis,corporate bankruptcy cases is gradually increasing. With the extensive application ofbankruptcy law, more and more scholars began to focus on the implementation of thelaw of bankruptcy law. Insolvency proceedings pending disposition decision toperform the contract is an important insolvency administrator powers, as imperfectlegislation so that our country does not have a complete performance of the contractsystem to be processed.When the author write this paper, in order to clarify the legal issues facing thethesis topic, using the normative and empirical analysis method to analyze thebankruptcy laws, regulations, and other relevant laws and regulations, judicialinterpretation, in order to clear thesis on the legal aspects of the actual situation. Dueto the short implementation period of bankruptcy law, judicial and legislativeexperience level is imperfect, the author of comparative analysis of the relevantsystems and developed countries, clearly intended to issue facing our country. By themethod of historical research indicates the relationship between the developmentprocess of China’s bankruptcy law and the market economy, that is the economic basedetermines the superstructure."This paper analyzes the current bankruptcy law treats punishment way to fulfillthe contract. Firstly, the bankruptcy law to terminate the contract at the deficiencies ofcontract law to terminate the contract by comparing the content. Bankruptcy law doesnot require the administrator to perform the contract pending the disposition ofcriteria. Insolvency administrator can not only make no reference to the criteria, butalso to supervise a mere formality People’s Court accepted the case and thebankruptcy creditors. For this reason, I recommend using the business judgmentrule-based, over-burden test, a standard test method for determining the balance ofinterests supplemented. Secondly, in the analysis of the way to continue to perform the contract, the more the right of defense system aimed at coordinating conflictsbetween bankruptcy law and contract law. In my opinion, when the provisions of thebankruptcy law and contract law conflict, the applicable insolvency law may realizeits value. Finally, the paper discusses the transfer of rights system in the U.S. andGermany, indicates that China’s bankruptcy law to perform the contract pending thescope and lack of treatment. I suggest that, for some special types of contracts, the useof the transfer approach, you can look forward to better realize the value of theinterests of both contracts, such as the continuation of the contract action. End of thisarticle points out the bankruptcy process to perform the contract in treatingdeficiencies, meanwhile, made a sound opinion.September16,2013," Provisions (II) of the Supreme People’s Court on SeveralIssues concerning the Application of the Enterprise Bankruptcy Law of the People’sRepublic of China " The introduction of the retention of title in insolvencyproceedings pending fulfillment of contractual made clear and specific requirements.In this paper the author retains ownership of the contract were analyzed. In myopinion, this also indicates that China has started to pay attention the existence of thebankruptcy law issues at the legislative level, and gradually improve the trend.