Research On Bankruptcy Trustee's Right Of Rescission Of Contract

The bankruptcy trustee's right to terminate the contract and the general right to terminate the contract are both related and different.The bankruptcy trustee's right of rescission of contract is based on the rescission right of general contract,which belongs to the research object of legal rescission.However,compared with the rescission right of general contract,the rescission right of trustee contract embodies the characteristic of "debtor-friendly".First,the trustee's right to terminate the contract is arbitrary.The existing bankruptcy law does not set a standard or limit the trustee's right to terminate the executory contract.The other is that the trustee's contract rescission right is exclusive.The bankruptcy law only provides that the trustee can rescind the contract which has not been fulfilled by both parties.Third,in the process of termination of the executory contract,the trustee may not perform the notification obligation;Fourth,the trustee's right to rescind the contract breaks through the rule that only the observant party can become the rescission owner,because in most cases,the debtor belongs to the party in breach in the contract to be performed.The analysis of the characteristics of the trustee's contract rescission right helps us understand the trustee's contract rescission right system and its existing legal issues.Regarding the issue of the criteria for determining whether a contract has not been fulfilled by both parties,this article believes that in addition to the general view of the “unfulfilled obligations of the main contract” standard,special criteria for judging are needed to reflect the impartiality of justice.Regarding the issue of the standard of the trustee's contract rescission right,this article puts forward the principle of “Maintaining Social Stability” and the principle of "New Balance Of Interests" on the basis of drawing on the experience and achievements of the United States,and filling the gaps in Chinese legislation.The principle of "Maintaining Social Stability" means that when the trustee exercises the right to rescind the contract,it shall consider whether the rescission of the contract is contrary to the maintenance of social stability.If the rescission of the contract will undermine social stability,it shall appropriately limit the exercise of the rescission right of the contract of the trustee.The principle of "New Balance Of Interests" is a more comprehensive standard for the exercise of contract rescission right based on the American standard of "Balance Test".It refers to the general principle of whether and how to rescind the contract based on the comprehensive analysis of the impact of the trustee's exercise of the contract rescission right on the debtor and creditor.In the case that the rescission of the contract by the trustee benefits the debtor but causes significant losses to the creditor and is obviously unfair,the principle of " Special Interest Protection for Specific Creditors" is applicable,that is,the exercise of the rescission right of the contract by the trustee is not restricted,but the specific creditor should be protected with special interests.In the case that the rescission of the contract by the trustee cannot benefit the debtor,but at the same time causes losses to the creditor,the trustee's exercise of the rescission right of the contract is no longer in conformity with the spirit of the bankruptcy law,and the exercise of the rescission right of the contract by the trustee should be restricted.Regarding the issue of the time limit for the rustee to exercise the right to terminate the contract,the trustee has neither notified nor responded within the stipulated time limit,and if it is deemed that both parties continue to perform after the contract is terminated,the legal effect of the continued performance of the contract shall be recognized.In addition,due to the particularity of the reorganization procedure,the period of exercise of the trustee's right to release under the reorganization procedure should be appropriately extended until the reorganization plan is finally confirmed by the court.