Study On The Right Of Bankruptcy Set-off

The offset refers that the parties in debt for each other use their debt to pay the other's debt,so the debts of each other are eliminated in the matching range.The 99 th and 100 th of "Contract Law" made the following provisions.“Set-off Not Subject to Condition Where each party owes performance to the other party that is due,and the subject matters of the obligations are identical in type and quality,either party may set off its obligation against the obligation of the other party,except where set-off is prohibited by law or in light of the nature of the contract." " Set-off Involving Non-identical Subject Matters Where each party owes performance to the other party that is due,and the subject matters of the obligations are not identical in type and quality,the parties may effect set-off by mutual agreement.Thus,the offset becomes one of the ways to eliminate debt,which equally important as the debt performance,debt relief and deposit.The relevant provisions of "Contract law" provide a foundation for the introduction and implementation of “Bankruptcy Law”.The right of set off in bankruptcy law is the extension of the right of the civil law in the field of bankruptcy law.Before the bankruptcy application is accepted,the creditor has a debt to the debtor.Whatever their debts types are the same,regardless of whether the conditions or time limit,creditors cannot go through bankruptcy proceedings and direct claim right of bankruptcy,offset the negative of the debtor's debt.Although this,but there is still a very tense relationship between the two.In this paper,we make elaborate around the purpose,the rights of the subject,the principle of autonomy of the application and the right to exercise the conditions.The right of set off in civil law is the basis and foundation of the right of bankruptcy,but the exercise of the right of the right of bankruptcy in legal practice should be limited and cannot be used at will.Observing the law is an important guiding theory in our judicial practice.But the situation of no legal basis appears frequently in judicial practice.Restricted by our judicial system and the quality of judges,the perfection of legal system is very important.In particular,China's bankruptcy law system is not perfect,there is a gap compared with developed countries.This paper summarizes the relevant provisions of America,Japan,Germany,China's Taiwan region of the right of bankruptcy,compared with China's "bankruptcy law" and relevant judicial interpretations,analyzes the deficiencies of bankruptcy setoff stipulated in the present law of our country.The deficiencies mainly reflect in the following six aspects.The provisions of prohibiting offset are not comprehensive;the exercise period of set-off right is too loose,have passed the limitation of action whether the creditor's rights may offset the stipulation is unknown,whether the rent can be offset is not clear,the main position of the bank as a special market subject in the right of bankruptcy is indeterminate,the set-off of a tort liability is not providing.Bankruptcy law belongs to civil law category.The author also is the basic principle of civil law in fairness,justice and honesty.In aspects of the provisions of the prohibition of set off,the exercise period of the right to set off,the time limit of the right to set off,the rent and other offset and tort damages,this paper on the basic principles of fairness and honesty,in order to prevent the abuse of right of bankruptcy,but also to prevent the debtor to take unfair actions to avoid the exercise of the right,for our country the "bankruptcy law" provisions put forward corresponding suggestions of part,which hope to provoke thought within the legislation and practice of "China's Bankruptcy Law"...