Research On Legal System Of Partial Liquidation For Enterprise Bankruptcy

The rapid development of market economy and the large number of market participants make the market competition more and more fierce.In the competition,the survival of the fittest and the frequent bankruptcy of enterprises,especially the clean-up of zombie enterprises,present a blowout outbreak.In the practice of bankruptcy liquidation,the principle of equitable repayment should be followed,but the occurrence of biased liquidation violates this principle.At present,the bankruptcy laws of all countries have made relevant provisions on the partial liquidation system to avoid the occurrence of partial liquidation.However,in reality,the debtor still carries out partial liquidation in various hidden ways to avoid the provisions of laws and regulations,thus damaging the legitimate rights and interests of some creditors who have not received partial liquidation.In order to regulate the partial liquidation behavior effectively,it is necessary to study the partial liquidation behavior deeply.Based on article 31 and article 32 of The Enterprise Bankruptcy Law,and bankruptcy law judicial interpretation(2),the reference of foreign legislation,together with the learning the of experience about advanced regulation and relevant theoretical results,this research is conducted in the following five parts.The first part introduces the enterprise biased liquidation reasons,problems and the significance of regulatory biased liquidation and so on.The imperfection of legislation is the most important reason for the partial liquidation of enterprises,which makes the debtors and specific creditors usually exchange for higher interests at a smaller price.However,the emergence of biased liquidation is not conducive to the reconstruction of enterprises,which wastes market resources and damages market credit.If it is not regulated in time,it will bring serious consequences.Therefore,regulating biased repayment behavior can maintain the principle of equal compensation for creditors,prevent debt collection competition,and protect the social credit system.The second part discusses the definition of biased liquidation behavior from three aspects:the concept of bias,the constituent elements and the related parties.Biased sex liquidation refers to the concept of the statutory period,before the bankruptcy procedure based on the previously existing debt,bankruptcy conditions and are unable to pay off the debtor in the specific payment behavior,cause specific creditor gets more than its liquidation in bankruptcy proceedings should gain share of the consequences of which damage the rights and interests of other creditors.The constitutive elements can be divided into subjective elements and objective elements.In the identification of the parties concerned,the scope of the parties concerned shall be clearly defined.The third part is about the right of revocation in partial liquidation.As a relief system of partial liquidation,the law should clearly stipulate the mode,subject,time limit,consequence and exception of the revocation right.The fourth part combines foreign related legislation to find out the insufficiency of our country's legislation on biased liquidation.Compared with foreign legislation about biased pay off,legislation in our country lack of specific provision in the constitutive requirements,in the regulation is not clear on the scope of related parties and the way of regulation,is not covered on the cancellation right,the last of exceptions to that rule in our country only made in the work of individual pay off,and does not relate to other kinds of partial discharge.The fifth part is the improvement suggestion of partial liquidation.In the proposal,it should be determined that the precondition of partial liquidation is that the debtor is in a state of insolvency,and the subjective state of the parties should be added into the constitutive requirements,and the subjective malice of the parties should be judged by the way of idealism.In addition,as a special subject,related parties should be specially regulated and regulated by extending the critical period.In addition to the general provisions,in practice with the conditions for the formation of partial liquidation,but not suitable for the revocation of the behavior,should also be made clear in the form of exceptions,such as the simultaneous occurrence of new value of the transfer,repayment of normal operating debt,price secured loans and other ACTS.