Study On The Way To Deal With The Executory Lease Contract In Bankruptcy

The lease contract plays an important role in market economy.The subject matter of it is mainly land,production equipment and other large real estate and movable property,and the lessee relies on the use of the lease to carry out production.It also plays an important role in the stability of social life.In the field of traditional civil law,such as contract law,the lease contract has been given special treatment because of its particularity.After the enterprise enters into the bankruptcy procedure,the disposal of the executor lease contract also affects the smooth proceeding of the bankruptcy procedure and the interests of the other party.The Article 18 of the bankruptcy law of China stipulates the general rule of dealing with the executor contract,which entrusts the right of choice to the insolvency representative,but does not make special regulations on the lease contract,which leads to the problems such as the bankruptcy administrator's right to choose is equal to the right to terminate the contract,lack of remedies for the party to the contract,the court can only be passive acceptance and so on in the judicial practice.Based on the analysis of the problems in practice and the comparative study of the theories and the reality of our country,this paper tries to provide constructive suggestions for the improvement of the way to deal with the executor lease contract in bankruptcy.This paper mainly uses semantic analysis,case analysis,logic analysis and other research methods.Starting from the rules and practice,it studies the way to deal with the executory lease contract in bankruptcy.This paper is divided into four chapters.The first chapter is a theoretical analysisof the executory lease contract.After defining the concept and elements of the executory contract,this paper analyzes the characteristics of the lease contract with unexpired period,and draws a conclusion that the lease contract with unexpired period in bankruptcy belongs to the executory contract.Then it analyzes the particularity of the lease contract in the traditional civil law field and the necessity of designing special rules,which provides the theoretical basis for the following discussion.The second chapter analyzes the current situation of China's treatment.Starting from the two angles of the rules themselves and the judicial practice,taking the above analysis as the basic point,this paper analyzes the deficiencies in the existing rules and the problems caused by them in the judicial practice,it is concluded that the application of general rules of treatment does not meet the needs of the lease contract.The third chapter is the theoretical analysis of the rules of dealing with the executory lease contract.From the point of view that the lessee bankrupted or the lessor,this paper compares the advantages and disadvantages of the choice right of the insolvency administrator and the right of the other party to terminate the contract under different circumstances,and makes a theoretical support for the following rule revision.The Fourth Chapter is to improve the rules of the executory lease contract in our country.In the original general rules,this paper suggests that the transfer system should be introduced to match the rules of contract law,and the restrictive conditions should be broken to reflect the particularity of bankruptcy law.Secondly,the exclusive rules of the lease contract to be performed are introduced,which are formulated in the form of the bankruptcy of the lessor and the bankruptcy of the lessee respectively.