On The Disposition Of The Lease Contract In China's Bankruptcy Procedure

Stability and order of the market economy is a strong guarantee for the normal operation of enterprises.enterprises can normally operate,in turn,its also can affect the market economic order.From the registration of the establishment,management,cancellation of registration,each link is inseparable from the law.After the enterprise has entered the bankruptcy procedure,problems such as the placement of employees,the distribution of claim appeared.Especially in the case of bankruptcy of the debtor,to make the fair repayment of all creditors,the bankruptcy law must establish a scientific comprehensive guide rules.Entering into bankruptcy,the contract disciplinary action appeared everywhere.In accordance with the requirements of the contract law,Both parties should abide by the principle of good faith,Fully perform their respective obligations under the contract,but after the bankruptcy of the enterprise,due to its over-indebtedness.It has been unable to comply fully with the obligations under the contract.At this point,in order to protect the common interests of the general body of creditors,the debtor can only increase property as much as possible to improve the creditor's repayment rate.The Article 18 of the bankruptcy law stipulates that the Administrator shall have the right to decide to terminate or to continue the performance of unfulfilled contract of both parties.However,in practice,on the one hand,the identification of "unfulfilled performance" is unclear,Resulting in difficulties in disposing the unfulfilled the lease contract;On the other hand,for the case of bankruptcy of the lessee and the lessor does not make a distinction,caused by the abuse of the rights of management.In addition,in addition to rescission or performance of the contract,the Administrator believes that article 18 also gives the right to transfer its contract which has been in practice has gotten consistent approval.It needs to be further clarified that how to transfer according to the law.By case-based retrieval,discovery and article 18 of the rules of the bankruptcy law relating to a total of 70 cases,in which the ratio of 41.4% of the lease contract.This is 29 contract of lease were to relieve or be deemed to have terminated.Article 18 of the bankruptcy law to allow manager to select more able to expand the programme to dispose of the property of the debtor.When to dispose of the contract,it is necessary to limit the manager to make decisions,and timely liquidation not affect the property of the debtor.The author believes that: Firstly,from the United States,to determine the executory contract by “material breach said”.Secondly,To ensure that manager is able to exercise discretion,we need to legislate to deny the contract enforcement that when one go bankrupt,the other party can lift the terms.Finally,more than nine-tenth of the lessor's bankruptcy cases is much higher than the case of the lessee goes bankrupt.Compared to the bankruptcy of the lessee,the lessor bankruptcy situation is more complex.In order to protect the rights of the party to the contract for the purpose,limiting the decision of the Administrator blindly,often leads to the debtor and the relative malicious collusion take down the sign made false lease contract,including the date,the disruption of bankruptcy order.Taking into account the legislative purpose of the bankruptcy law,Based on "the principle of sales not devastating lease",Take the middle way that will manage the registration of the rescission right of the people to the "living + registration" and the leasing contract registration required before occurred in the Court of bankruptcy of the enterprise.