Study On The Revocation Of Referential Liquidation In The Bankruptcy Law Of China

Bankruptcy is a consequent of the development of market economy, thus a comprehensive bankruptcy institution marks the maturity of the market. Through maintaining the competitive order of "survival of the fittest", bankruptcy keeps promoting the whole society. As the fundamental law of the bankruptcy institution, the bankruptcy law is an essential component of the civil and commercial law system. In the operation course of the bankruptcy institution, the key matter is to protect creditors' legal interests from debtors or other creditors, and to strike a balance among all creditors. It is the revocation of referential liquidation that makes the difference.At the early stage of the bankruptcy law, the right of revocation was aimed at the equality among creditors, which played an important role in ensuring that creditors were equally liquidated. While the theory of bankruptcy grows, the right of revocation pays attention to the debtors'right as well, which is beneficial to the prosperity of the market economy. However, the development of the law usually lags behind that of the social life, thus there exist some problems concerning the balance of interests among creditors or between creditors and debtors in China's Bankruptcy Law. By going through recent cases about revocation of preferential liquidation in China, one can find that the criteria adopted by the court to recognize the preferential liquidation are quite different, and the application of exemption from revocation also differs, which happen to be the flaws of China's Bankruptcy Law. Meanwhile, there is few research of the application of this mechanism, especially when the specific judgments are combined. Therefore, a study on the revocation of the referential liquidation and suggestions on legislation are of significance.Combined with China's judicial practices in the revocation of referential liquidation, this paper proposes specific legislative suggestions based on the theory of referential liquidation and references to legislative and judicial experiences from German, the United States and Taiwan. The whole paper is composed of the introduction, the body and the conclusion. The body parts can be divided into four parts.The first part introduces the basic theory of referential liquidation. It attempts to define the referential liquidation in the aspects of its definition, particularity and type. Then on this basis, the constitutive elements of referential liquidation could be concluded, that is the "ought to be" standard of referential liquidation. At the end of this part, it would analyze why the referential liquidation should be regulated, which is also the value of revocation of referential liquidation and offers guidelines for the legislation perfection in the last part. Through theoretical analysis, the paper tries to provide references for solving subsequent problems in reality.The second part is focused on the present situation of revocation of referential liquidation. At the very first, it describes the legislative situation of this matter, and reviews these rules, purely on their reasonability. Then the positive analysis methodology would be adopted to review the situation of revocation of referential liquidation in China's judicial practices. This part aims to present the actual status of the revocation of referential liquidation from the perspectives of both legislation and judiciary.The third part analyses the problems and causes in China's revocation of referential liquidation. It continues to conclude problems in China's revocation of referential liquidation from the present legislative and judicial situation. At the same time, it explores the causes and thus establishes the basis of legislation perfection.The forth part is suggestions on legislative perfection of referential liquidation. The overseas experiences in this field would be introduced and the feasibility would be analyzed. In addition, it would conclude guidelines which should be followed in the institution improvement, according to the values proposed by the revocation of referential liquidation. At last, the paper would propose specific suggestions to perfect the institution of revocation of referential liquidation.Combined with recent cases of revocation of referential liquidation, this paper proposes some new suggestions on the basis of fundamental theory analysis, which is mainly the innovative point. In contrast to past research, the subjectivity of creditors is restricted to be full awareness in the proposal part of this paper. Moreover, the paper also makes several suggestions concerning the design of consequential elements in the recognition of referential liquidation.Certainly there are a few deficiencies in this paper. It could not cover every aspect of the revocation of referential liquidation matter, for my academic capability and the length of the paper are both limited. Hope this paper can broach this subject for discussion and the research would be perfected. Meanwhile, the feasibility and reasonability of the suggestions proposed still need to be examined through practice.