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Study On The Continual Performance Of The Executory Contract In Bankruptcy Law

Posted on:2021-03-06Degree:MasterType:Thesis
Country:ChinaCandidate:Z Z YangFull Text:PDF
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Article 18 of the Enterprise Bankruptcy Law provides that the bankruptcy administrator has the option to continue to perform or terminate the contract.The executory contract is an important part of the bankruptcy property.The choice of the bankruptcy administrator not only affects the value of the bankruptcy property,but also is closely related to the interests of the other side of the contract.Continuing to perform is an important aspect of the bankruptcy administrator's option,which has important value of legal doctrine research.China's bankruptcy trial is still in its initial stage.There is a lack of systematic research on the rules of continuing performance of contracts to be performed,and there are legislative loopholes and conflicts in the rules.This paper makes a systematic study on the settlement of the conflict between the rules of continuing performance of contract to be performed and the rules of defense of contract performance,the principle of continuing performance and the confirmation of applicable requirements,so as to systematize the system of continuing performance of bankruptcy.First of all,the "encounter" between the bankruptcy continuance rule and the contract defense rule will lead to the inevitable performance stalemate.The limitation of the right of defense in bankruptcy proceedings can avoid the deadlock of performance and maximize the efficiency value of the bankruptcy continuing performance rules.Prior to the administrator's decision to continue performance,the non-bankrupt party shall also be restricted from asserting the right of unsecured defence in order to protect the insolvency administrator's term interest under the insolvency rules.Secondly,since the enterprise bankruptcy law does not make specific restrictions on the bankruptcy administrator's choice to continue to perform,China's bankruptcy law should establish the principle of continuing to perform based on the principle of maximizing the bankruptcy property,so as to avoid the situation of the bankruptcy administrator's abuse of the option.Finally,considering that the applicable requirements for continued performance in China's bankruptcy law are not clear and systematic,the author proposes to establish the applicable requirements system with the consent requirements,the remedy requirements for prior default and the guarantee requirements for expected default as the core content in the rules for continued performance in bankruptcy.I.consent requirements mean that the decision of the administrator to continue to perform shall be approved by the creditors'committee or the people's court,and the exercise of the administrator's option shall be supervised from a procedural point of view.China's bankruptcy law reflects the legislative tendency of giving priority to the interest group of creditors as the subject of the right of consent,but it has not been implemented in the end.In line with this,the author argues that we should re-examine the subject status of consent right in the creditors' meeting.Second,the provisions of remedy and guarantee requirements in China's bankruptcy law are relatively simple and imperfect.The remedy requirement means that the administrator who decides to continue the performance needs to remedy its own default before asking the non-bankrupt party to perform.The requirement of guarantee means that the administrator who decides to continue to perform shall provide sufficient guarantee for the future performance of his obligations at the request of the non-bankrupt party.At present,China's bankruptcy law only provides guarantee for a remedy,for the performance of default is not a direct and adequate remedy.The author advocates that legislation should be adopted to clarify a variety of remedies,including continuing performance,taking remedial measures and compensation for damages,which not only does not violate the existing contract law system in China,but also draws on the experience of the comparative law system,including the bankruptcy law of the United States.This paper makes a preliminary and systematic discussion on the rules of continuing to perform in bankruptcy in the hope of providing reference for the existing legislation and practice problems in this respect.
Keywords/Search Tags:Bankruptcy Procedure, The Executory Contract, Continue to Perform, Remedial Requirements
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