On Determination Of The Revocable Actions In Bankruptcy

Some actions that have surface legality such as transfer,gift,etc.,once they are deemed bankrupted revocable behavior,their effectiveness will be negated,and the administrator can recover the property previously improperly imposed by the debtor,thus realizing the maximum benefit of all creditors.However,the Enterprise Bankruptcy Law in China only enumerates bankruptcy revocable behavior under six circumstances,whether it is in the static theoretical system level or the dynamic judicial practice level,or the standard for the value of bankruptcy revocation system,the determination of revocable behavior,etc.There are many controversies.This directly affects the extent and scope of the exercise of the bankruptcy revocation right,affects the stability of previous transactions and the protection of the interests of all creditors.In this paper,we will study the identification of the bankruptcy revocable behavior in combination with related cases in the bankruptcy practice,and expect to provide a more complete set of operational standards and rules for the determination of bankruptcy revocable behavior.In addition to the introduction and conclusion,the body of this article is divided into four parts:The first part is the origin of the problem.The bankruptcy revocation system originated from the creditor revocation system in civil law,and it was slightly different due to the constraint of bankruptcy.The bankruptcy revocation system has made a negative evaluation of the debtor’s unpaid transfer,individual liquidation,and other actions.What he seeks is to achieve equal compensation for all creditors in the debtor’s limited bankruptcy assets and protect the interests of all creditors.However,due to the limitation of the enumerative legislative style,there are many problems with the equality protection of creditor’s rights in the determination.For example,the referee’s standards are diverse,the phenomenon of different judgments in the same case is more common;the judge’s reasons for avoiding the referee are lighter,or emphasizes the essence of form and lightness;the law applies to mechanization,and so on.Our country needs to establish a more complete and more operational recognition rule on the revocable bankruptcy.The second part is the theoretical and practical disputes in the determination of bankruptcy revocable behavior.Combining with the controversy of the theoretical community on the determination of revocable behavior in bankruptcy liquidation,the author has carried out statistics on related bankruptcy cases in the non-contentious database for the past three years.Among the six kinds of revocable situations listed in Articles 31 and 32 of the Enterprise Bankruptcy Law,there are mainly three types of behaviors that are frequently exposed and have more problems exposed: unpaid transfer of property,and debt with no property guarantee Provide property guarantees and individual repayments.As for abandoning creditor’s rights,trading at apparently unreasonable prices,and early liquidation,there are sporadic cases in judicial practice alone,a total of 11 cases.Through combing,it can be found that the problems presented by the aforementioned revocable behavior disputes appear to be trivial,fragmented,and not related,but the underlying commonalities can be found under the surface,that is,the lack of clear rules of identification leads to the confusion of the identification standards.The third part is a systematic review of the dilemma of bankruptcy revocable behaviors.At present,there are at least three problems in the institutional norm of China’s bankruptcy revocable behavior: First,institutional arrangements for bankruptcy revocable behavior are excessively rigid and inflexible.This kind of legislation does not summarize the connotation or general requirements of the revocable behavior.The referee can only compare and judge the accused behavior and the various listed behaviors.This kind of purely enumerated legislative style has weak adaptability.In the face of numerous complex realities,there is a lack of flexible response capabilities.Second,the current system lacks detailed rules or does not resolve specific constitutional elements.This leads to different opinions on the identification of various behaviors in both the theoretical and practical worlds,and lays the foundation for the identification of chaos.Thirdly,the application of exception rules for revocable bankruptcy is not sufficient.The current exception rules are concentrated in Article 32,“Benefiting the Assets of the Debtor,” which is not only too narrow in scope,but also ambiguous in its formulation,and it is difficult to meet actual needs.The fourth part is to improve the bankruptcy revocable behavior recognition system proposal.In order to solve the current bankruptcy revocation system’s deficiencies and practice identification difficulties,we should: First,establish a general clause that recognizes bankruptcy revocable behavior.This general clause contains harmful behavior.The two elements of sexuality and periodicity can provide institutional flexibility for identifying new revocable behaviors.Second,the bankruptcy revocable behavior can be divided into two types of bankruptcy fraud behaviors and biased repayment behaviors,which establish constituent elements for typed behaviors to improve The operability of the law and the identity of the standard are the same.Third,it is based on the principle of not substantially harming the interests of the creditor and the beneficiaries of the actor and adding the applicable exception rules to take into account the transaction safety.