Improvement Of The Rules For Revoking The Guarantee Of Critical Period In Bankruptcy Procedure

As a comprehensive institutional system,the bankruptcy law system has undergone a series of formation and evolution processes,gradually removing the meaning of derogation to the bankrupt debtor,and even based on the sympathy of the bankrupt debtor and the necessary guarantee for the legal and reasonable rights of the bankrupt debtor.Provisions for protecting the legitimate interests of bankrupt debtors have been added to the bankruptcy legal system.In order to protect the interests of bankrupt debtors,ordinary bankrupt creditors and bankrupt enterprise employees,the bankruptcy property can't be taken away by fraud or unfair payment.In the design of the bankruptcy exemption system,the bankruptcy revocation right system has been added,and revoking guaranteed acts in the critical period is one of them.The essence of the bankruptcy revocation right system is a kind of traceability mechanism that affects the security of transactions for the behaviors that have occurred in the past.The purpose is to maintain the balance of interests of all parties.Following the other world's legal system which are more sound,in the "Enterprise Bankruptcy Law of the People's Republic of China"(hereinafter referred to as "The Bankruptcy Law")also joined the bankruptcy revocation rights system,after which,newly revised in 2007 The Bankruptcy Law and the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Enterprise Bankruptcy Law of the People's Republic of China(II)(hereinafter referred to as the“Judicial Interpretation II of the Bankruptcy Law”),the practical application has been explained in more detail.Despite the Bankruptcy Law and the Judicial Interpretation II of the Bankruptcy Law have guided the practical application of thebankruptcy revocation system,the situations encountered in judicial practice are more complicated,especially after the combination with the very complicated guarantee system.The controversial issue may not have specified regulations in Bankruptcy Law.Therefore,it is necessary to further study the combination of the guarantee system and the bankruptcy revocation right system.That is,when and under what circumstances to provide guarantees,it is necessary to exercise the power of bankruptcy.Because the parties tend to have different interests in protection,the parties have different interpretations and application methods for the bankruptcy law system which is not clear enough.The purpose of the bankruptcy administrator is to protect the rights and interests of creditors,and it is inclined to expand the applicable bankruptcy cancellation system.In order to realize their own claims,creditors who enjoy the guarantee would invoke various reasons to defense for their property rights.There are many situations in judicial practice that may appear to be in compliance with the law,but in essence still constitute a biased settlement;in some cases,it does not seem to comply with the law,but in essence for the production and operation of the enterprise,it does not substantially damage the property interests of the debtor and other creditors.The bankruptcy law of some foreign countries has made detailed regulations.The current provisions on bankruptcy revocation rights in China are too simple and rough,especially for the bankruptcy procedures to revoke the guarantees in the bankruptcy critical period.Compared the importance of this rule,as well as the controversy of judicial practice,the provisions are insufficient.This paper explores and analyzes the four aspects of using the customary transaction exception system to cover up the malicious guarantee behavior,the identification of the guarantee behavior,the guarantee scope of the maximum mortgage,the prior agreement and the statutory establishment—the conflict of different legal systems,combined with judicial cases and foreign countries' provisions.The law of bankruptcy revocation right stipulates whether the law should restrict such behaviors from the perspective of the time,purpose and legitimacy of the guarantee acts,and grasps from the legislative purpose to analyze whether the bankruptcy administrator can exercise bankruptcy revocation rights in some special circumstances,and put forward some suggestions for perfecting the rules for the cancellation of guarantees in the system of bankruptcy revocation.