On The Avoidance Of Preferential Transfers In Bankruptcy

Avoidance power of bankruptcy plays an important role in bankruptcy law because of its nature of restoring the integrity of the bankruptcy property and ensuring the fair compensation of the bankruptcy creditors.As a very special part of the avoidance power of bankruptcy,avoidance of preferential transfers is the system that can best reflect the role of the avoidance power of bankruptcy in"reversing the universe".At the same time,it is an important pillar to realize the basic principle of fair liquidation of bankruptcy law.The Enterprise Bankruptcy Law of our country only makes enumerative provisions on the avoidance power of bankruptcy in Article 31 and Article 32,which does not stipulate the two types of revocable acts in bankruptcy,fraudulent transfers and preferential transfers,respectively,nor does it stipulate their respective constituent elements.The legislation is too simple,which leads to difficulties in the exercise of the avoidance of preferential transfers in practice.The bankruptcy law of the United States has a long history.The system of avoidance of preferential transfers has detailed provisions.The bankruptcy code devotes a lot of space to the provisions of fraudulent transfers and preferential transfers,respectively.And it made nine detailed provisions for the exceptions of preferential transfers.There are many similarities between the bankruptcy law of our country and the bankruptcy law of the United States,such as the principle of objectivism in the composition of preferential transfers in both countries,and fair liquidation as the legislative purpose of the avoidance power of bankruptcy.This paper mainly uses the method of comparative study to make a comparative analysis of the avoidance of preferential transfers in bankruptcy between China and the United States.By comparing the constituent elements of preferential transfers and the exceptions of preferential transfers between China and the United States,it points out the shortcomings of the avoidance of preferential transfers in the bankruptcy of our country.The shortcomings include the legislative logic errors of the preferential transfers and its exceptions,the lack of provisions on the constituent elements of preferential transfers,the inappropriate criteria for judging the exceptions of preferential transfers,and the lack of detailed provisions on the specific circumstances of the exceptions of preferential transfers.Finally,this paper puts forward relevant legislative suggestions on how to set up the legislative logic of the preferential transfers and its exceptions,how to stipulate the constituent elements of the preferential transfers and how to set up the exceptions of the preferential transfers.