On The Bankruptcy Administrator's Choice Of Financing Leasing Contract

Financial leasing plays an important role in promoting capital circulation and stimulating the development of market economy.Both the lessor and the lessee face enormous commercial risks and competitive pressures in the financial leasing relationship.After a party enters the bankruptcy proceedings,it is important to formulate scientific contract processing rules for how the financial leases whose lease term has not expired are directly related to the interests of the contract counterparts and the interests of all creditors.Based on the domestic and international legislative system and case law experience,this paper is based on the legal characteristics of the financial leasing contract,and intends to seek a fair and reasonable rule to improve the bankruptcy administrator's treatment of the financial leasing contract.Part ?: Financial Leasing in Bankruptcy.The first part begins with the analysis of the legal nature and legal characteristics of the financial leasing contract,discusses the ownership of the leased property in the financial leasing and the division of property rights,and briefly describes the current bankruptcy law in China in the processing rules of the unexpired financial leasing contract.The problem is paving the way for the following discussion.Part ?: Application of Bankruptcy Administrator's Option in Financial Leasing.The second part analyzes the contractual characteristics of financial lease that accords with the administrator's right to choose from the duration of the financial lease contract,the nature of the contract and the rights and obligations of both parties.The bankruptcy law stipulates that the bankruptcy administrator has the unilateral decision right to " contracts that the debtor and the other party have not completed their performance".Whether the financial lease contracts whose lease term has not expired conform to the " contracts to be performed" stipulated by the laws of our country is controversial.Part ?: Restrictions on the Exercise of Bankruptcy Administrator's Option.Although Article 18 of China's Bankruptcy Law gives the bankruptcy administrator the right to choose whether to continue to perform " contracts that the debtor and the other party have not completed their performance",it does not stipulate the criteria and principles for the administrator to exercise the right of option.The zero standard for the administrator's option is beneficial to increase the bankruptcy property and reduce the burden on the debtor,but it is very likely to damage the rights and interests of the contract counterpart.Therefore,the administrator's right to choose should be restricted,especially the lessor with an advantageous position should be required to have higher standards.Part IV: the relation and conflict between bankruptcy administrator's option and other rights.The part deals with the handling rules when the rights of rescission,withdrawal and non-bankruptcy procedures conflict with each other.When the administrator's right to perform the contract conflicts with the non-bankrupt party's legal right of rescission or the agreed right of rescission,the right of option in the bankruptcy procedure has a higher priority,that is,once entering the bankruptcy procedure,the non-bankrupt party shall not exercise the right of rescission first.Part ?: Legal Consequences of Exercise of Bankruptcy Administrator's Option.The fifth part analyzes the legal effect of the bankruptcy administrator's unilateral decision.The current bankruptcy law does not specify in detail the legal effect of the administrator's exercise of the option.The bankruptcy law system does not divide the debts generated when choosing the performance status of the contract into common benefits debts and ordinary debts,which is not conducive to the arrangement of compensation order by the manager.In addition to the administrator's right to continue to perform or terminate the contract,the administrator should also be given the right to transfer the contract,and the transfer system in the bankruptcy procedure should be made different from that in the contract transfer system,so that the bankruptcy administrator has more authority to break through the contract law system.