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Research On The Mechanism Of Balance Of Interests In Bankruptcy Set Off Right

Posted on:2017-09-05Degree:MasterType:Thesis
Country:ChinaCandidate:W P LiuFull Text:PDF
GTID:2336330488972654Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Right of bankruptcy setoff is a trinity system: collecting judicial economy benefit, providing the recessive guarantee and realizing the dynamic balance of the interests. It not only saves trading performance cost, but also provides a guarantee to mutual negative creditors’ rights, meanwhile it achieves the interest dynamic balance between people of set-off and debtor’s other creditors. As an important right in bankruptcy proceedings, it has significant influence on the interests distribution. In 2007, The enterprise bankruptcy law formally established the system of right of bankruptcy setoff in China. However, it only set up article 40 which stipulates the forbidding scope of the right of bankruptcy setoff. Bankruptcy law judicial interpretation of the 2, 2013, makes up for the deficiencies of right of bankruptcy setoff in China, but there still are some problems not regulated, which makes the study of right of bankruptcy setoff cannot meet the reality needs. Especially in the great age of the economic integration, high frequency of bankruptcy cases require that we pay more attention to the improvement and perfection of the bankruptcy law. Based on the principle of right of bankruptcy setoff, trying to grasp the nature of right of bankruptcy setoff, this paper analysis the conflict among the parties in the process of exercising setoff right, confirms the current legislation on the solution of the conflict of interests, analyzes the insufficiency, and proposes perfecting the mechanism of balancing of interests.The content of the full text mainly includes four parts:The first part is mainly about the basic theory of right of bankruptcy setoff. First of all, illustrate the relationship between the right of bankruptcy setoff and the right of setoff and clarify the connection of the right of bankruptcy setoff and the right of setoff. Secondly, affirm the right of bankruptcy setoff and the right of setoff the item, furthermore grasp the particularity of right of bankruptcy setoff and master the basic attributes of right of bankruptcy setoff to better play the advantages of right of bankruptcy setoff. Thirdly, analyze the nature of right of bankruptcy setoff especially its guarantee nature which is the core of the system of right of bankruptcy setoff properties. Its existence not only changes the interests of the creditor and debtor original pattern, also makes the right of bankruptcy setoff in controversy. Finally, comb the relationship between the interests of the right of bankruptcy setoff. According to the convenience of the interest relations analysis of the conflicts of interest between the parties, then make the rules to keep the balance.The second part starting from the guarantee of right of bankruptcy setoff, examine the system of right of bankruptcy setoff. First, analyzing the sources and legitimacy of the right of bankruptcy setoff guarantee, this paper deems the guarantee of the right of bankruptcy setoff essential attribute; Second, classify the competing conflicts caused by guaranty nature in the exercise of right of bankruptcy setoff. The conflicts mainly exist in the right of setoff between people and other creditors, the right of setoff between people and the pledgee, and the current legal system, the balance of the interests of the conflict solution was analyzed, and clear the place which is not yet perfect. The last, strengthen the conflicting interest balance between people and the other creditors. To deal with conflicting interest, stick to restriction, put forward further regulations on no-setoff creditor’s right and entitle other creditor direct supervision. Make clear regulation on the priority of right of bankruptcy setoff or pledge of right to balance setoff the conflict between man and the pledgee interests.The third part starting from the right of formation properties of right of bankruptcy setoff, examine the system of right of bankruptcy setoff. First of all, affirming the legitimacy of right of formation of bankruptcy setoff right, regard the nature of the right of the formation of right of bankruptcy setoff as legal for any claim by a creditor to a debtor best way; Second, analyze the interest conflicts caused by right of property in the formation of right of bankruptcy setoff to find its main influence on the interests between people of set-off and the debtor. The nature of the right of formation is the essential requirement for right of bankruptcy setoff, but in China bankruptcy law has no perfect regulation on nature of the right of formation. To exercise the right of formation, bankruptcy law only has one set regulation to restrict it in scheduled period limitation which protect the interests of the as well as obtain necessary restriction. Except the restriction in scheduled period limitation, our system of right of bankruptcy setoff is exactly devoid of regulations to balance setoff rights conflict between person and the debtor. At last, clear the scheduled period limitation in the nature of right of formation to balance conflicting interest between the man to setoff and the debtor.The fourth part review the system of right of bankruptcy setoff in view of fairness. First, respond to the controversy on fairness of the right of bankruptcy setoff. Second, reflecting on the fairness of right of bankruptcy setoff, this paper ensure the right of bankruptcy setoff system need substantive equality, i.e. in the process of exercise of right of bankruptcy setoff, comparing with general creditor, special identity deserves more strict restriction so as to balance the interest conflicts caused by their special status. At last, adhering to the fair principle, for special subject, more restriction are put on the exercise of right of bankruptcy setoff: deny the guarantor’s right of setoff in bankruptcy; strictly restrict the excise of the right of bankruptcy setoff in Banks and the associated enterprises in order to balance the conflict interest caused by the special subject.
Keywords/Search Tags:Right of bankruptcy setoff, Guarantee, Fairness, Conflict of interest, Balance mechanism
PDF Full Text Request
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