The Research On The Construction Of Bankruptcy Compensatory Recall Right System In China

The concept of bankruptcy compensatory recall right finds no place in the prevailing PRC law.In judicial practice,courts of different jurisdictions deal with cases related to bankruptcy compensatory recall right in various ways.Also,in the academic field,scholars' attitudes towards such right differ from each other.However,in order to implement the basic idea of the system of recall right,to protect the rights and interests of property holders and to prevent moral hazard,I think it is necessary to acknowledge the existence of compensatory recall right and to improve the corresponding legal system.Starting from the basic theories of compensatory recall right,this essay analyzes the difference among the concept of compensatory recall right,the system of subrogation and the claim right of returning unjustified enrichment,based on which it gives a more systematic and complete definition of compensatory recall right: the right to a claim for payment or to request the administrator to return the property subject to compensatory recall right which arises when the object subject to recall right is damaged,lost,or is illegally transferred by a bankrupt debtor or bankruptcy administrator,and there is a corresponding compensation property such as payment,insurance premium,compensation,etc..Besides,this essay clarifies the sources and foundations of compensatory recall right,i.e.right of ownership,right of recovery of possession,and claim right of restitution in the law of obligation,thus.By referring to the legislative and judicial experience of Germany and Japan,this essay further concludes the conditions for exercising compensatory recall right as follows: the failure to exercise recall right;the existence of compensation and distinguishability of the compensation and the debtor's property.Based on the above,this essay tries to put forwards some suggestions for the revision of the prevailing bankruptcy law and expects to provide some ideas for future legislation.