Research On The Revocation System Of Preferential Transfer

Different from the gratuitous behavior,the preferential transfer is a legal behavior of paying off debts.However,after the debtor falls into bankruptcy,his bankruptcy property becomes a scarce resource.In order to prevent creditors from competing for bankruptcy property by improper means,undermining the principles of fair liquidation of bankruptcy law,the law restricts the preferential transfer of debtor.In the 2006 Enterprise Bankruptcy Law of People’s Republic of China(hereinafter referred to as the Enterprise Bankruptcy Law),there are still some limitations and defects in the legislative regulation of the preferential transfer revocation,manifested in the following aspects: the legislation is too abstract and simple,especially in its elements,the legal consequences and special parties.Moreover,the legislation does not include all the specific types of preferential transfer behaviors.Therefore some payment behaviors with preferential effects can not be included in the scope of the legislative adjustment.,which results in the phenomena of debtor’s failure to apply for bankruptcy in joint with some creditors and the debtor’s transferring bankrupt property in the name of guaranteeing creditor’s rights before bankruptcy petition.All of these behaviors seriously violate the legal interests of other creditors.In order to solve these problems,through the analysis on legislation of all countries,mainly United States,this thesis fully demonstrates what legislation development direction China’s preferential transfer revocation system should take under the current economic background on the legislation after taking into account the present situation of legislation and judicial practice in China.Meantime,some individual ideas and suggestions to the current problems in the judicial practice are put forward to seek a feasible way for solving the dilemma of judicial reality.Specifically,this thesis is divided into five parts:The first part is the analysis of a typical judicial case by case analysis to tease out the focus of controversy,and to introduce the core argument in this paper,namely legislative regulations of preferential transfer revocation system and problems in its judicial application.Meantime,the keywords retrieval method is used to search out judicial cases of preferential transfer on Magic Weapon of Peking University,to sum up specific standards and results of court for all kinds of preferential payment in judicial adjudication,so as to conduct preferential payment type analysis,providing judicial data for further demonstration of itselements in the second part.The second part interprets the normative elements of the preferential transfer revocation system,focusing on the key characters of each revocation requirement to analyze the two aspects: the subjective elements and the objective elements.For subjective elements,person’s subjective malice and malicious presumption are emphasized.The subjective malice is discussed according to the international legislation experience,to explain advantages and disadvantages of all the legislative modes,as well as how China can learn from their experience for selecting the appropriate legislative model.Constructive malice system dominated by the United States demonstrates its theoretical basis and practical significance.The objective aspect mainly involves the judgement of the appearance of preferential transfer,including the reasons of bankruptcy,the preferential effects of transfer behaviors and the issues of the legal critical period.The third part explores the specific rules for exercising the revocation rights of preferential transfer.Firstly,I discuss the controversial issue of the nature of the bankruptcy revocation right in the academic circle to make clear its legal nature and provide the theoretical basis for the later determination of the exercise subject.Secondly,further discussing the specific exercise subject,exploring the problems existed in the bankruptcy administrator system and the detailed solutions for it.Finally,I analyze the defenses which the party could claim and explore the American exception systems for the purpose of improving our countries exceptions legislation technology.The fourth part explains the legal consequences of exercising the preferential revocation rights.China adopts the revocable legislative model.China adopts the revocable legislative model.Under the premise of this legislation,the consequences include the confirmation of invalidity of the behavior and the right of recovering the property.Additionally,in the aspect of civil liability,the relevant actors who intentionally or gross negligent to cause the loss of the debtor property,including the legal representative of the debtor and other persons with direct responsibility,should bear the liability of compensation.For criminal liability,the crime of false bankruptcy should be applied carefully.In the fifth part,the author puts forward some suggestions to perfect the legislation of the preferential transfer revocation system.It is necessary to make the normative elements clear and add miscellaneous provisions to overcome the shortcomings of the concrete legislative model.Drawing lessons from the exception rules of the United States and absorb the miscella-neous provisions to overcome the shortcomings of the concrete legislative model.Drawing lessons from the exception rules of the United States and absorb the simultaneous new value,post new value and ordinary trade exceptions into our legislation.For the exercise of the revocation rights,it should be clear that the debtor is entitled to exercise the revocation right in the bankruptcy reorganization procedure.Moreover,a distinction should be made between the general debtor and relations.For the legal consequences,the provisions should confirm that the assignee is obligated to return the property,except the bona fide third party.