Judicial Determination Of Revocable Behavior In Bankruptcy Law

The system of bankruptcy revocation rights is a powerful weapon for correcting bankruptcy fraudulent acts and partial repayments.The revocable behavior is complex ?changeable and overlapping,the standard is not clear,seriously restricting the function of the right of cancellation system.Nearly five years after the bankruptcy law and relevant judicial interpretations have been implemented,we need to reflect on the recent practice,so as to promote the improvement of the system of bankruptcy revocation rights.The article is divided into four parts:The first part is the theoretical basis of the bankruptcy law on revocable behavior.The first section analyzes the characteristics of revocable behavior by combing the origin of revocable behavior and defines it,thus clarifying the concept of revocable behavior.The second section,on the basis of our country's legislation and in combination with foreign legislative practice,this paper classifies the constituent elements of revocable behavior.It is considered that the constitutional elements of fraud are: behavior occurred within one year prior to the acceptance of bankruptcy,the behavior is harmful,and the act is clearly stipulated in bankruptcy law.The components of biased behavior are as follows: The act points to the existing debt before the bankruptcy petition is accepted,the act occurred within one year before the bankruptcy petition was accepted,the act was conducted against one or some creditors and the behavior was harmful.The creditor is illegally liquidated.The second part is the judicial review of the revocable act in bankruptcy law.Based on the theoretical classification and constitutional requirements of the first chapter,this part analyzes the status of the determination of the revocable behavior in the judicial practice of our country.The specific judgment method of the act of revocable behavior is concluded: it is considered that the unpaid behavior should be expanded and understood;the unreasonable price transaction should be judged by all aspects of the integrated transaction;the after-guarantee behavior emphasizes whether the provision of the guarantee has the price benefit of the main contract and whether there is improvement of the specific creditor The debtor is assumed to lose the ability to repay the status of liquidated;early liquidation behavior and individual liquidation of the determination is dynamic,individual judgment ofthe exception should be combined with the debtor's business scope,the area of repayment is conducive to improving the solvency of the debtor to consider.The third part is the analysis of how several specific behaviors that are common in practice can constitute revocable behavior.We considered biased behavior,if a creditor can prove that when the recipient is the goodwill,then it should be given its legal protection,the right to exclude the application of avoidance.The bank's deduction of deposit based on the accelerated maturity clause shall be valid in principle unless the agreement on the expedited maturity clause is unreasonable or the bank fails to fulfill the notification obligation prior to the deduction.The related guarantee shall insist on the substantive standard of harmfulness,and will not be revoked if the related guarantee benefits the debtor's enterprise.At the same time,it considers whether the guarantee resolution meets the voting right exclusion rules,whether the guarantee has consideration or not.The fourth part is the perfect suggestion of revocable behavior.In the opinion of the author,the principle of protecting the interests of creditors should always be adhered to,and the need of balance of interests should be properly considered.Give the creditors well-intentioned compensation the right of defense,elaborate the exception rules of individual repayment behaviors,give due consideration to the principles and habits of commercial transactions,and increase the related regulations on related-party guarantees.