Research On The Restrictions On The Exercise Of The Right To Terminate The Contract Pending Performance By The Bankruptcy Administrator

The enterprise bankruptcy law article 18 of our country remove bankruptcy administrator of executory contract rights,but the related legal concept is not specific for,the insolvency administrator also does not limit the scope of exercising termination right,this makes the administrator fails to fulfill its obligations of the completion of contract both parties subject to bilateral contract types shall enjoy the right of termination of the contract,not form a right exercise unified standards.This is in conflict with China's current contract law,property law and other relevant provisions,is not conducive to the unification of the legal system;In addition,differentiation of special types of contracts is not considered in the punishment rules for the performance of contracts.In judicial practice,there may be situations in which the bankruptcy administrator does not reasonably exercise,or even abuse the right to discharge,or improperly damage the bankruptcy creditors or even the public interests.Therefore,the bankruptcy administrator's right to terminate the contract to be performed should be limited.This article adhere to the original intention of standardize bankruptcy administrator exercising termination right,together with the present situation of our country legislation and judicial practice,the insolvency administrator executory contract termination right exercise of limit analysis,and by the method of outside of learning and using for reference,integrating their own ideas,tries to put forward to limit bankruptcy administrator executory contract rescission of the specific path.First of all,it clarifies the connotation and value of the two legal concepts of contract performance and bankruptcy administrator's right to terminate,explains the four major requirements of the contract to be performed from the perspective of normative interpretation,explains the legal basis and rationality of the establishment of bankruptcy administrator's right to terminate,and clarifies the research ideas.Secondly,the article limits bankruptcy administrator discusses the necessity of executory contract termination right,by contract law rules the limitation on the bankruptcy administrator exercising termination right,manager's obligation of right of bankruptcy administrator to remove restrictions and executory contract termination right abuse leads to a conflict of interest the Angle of three talks about the necessity of the right to limit,in search of research direction.Thirdly,from the theoretical perspective,this paper explores the limitation path of the bankruptcy administrator's right to terminate the contract pending to be performed.And treat the contract rescission shall be strictly limited by the four types of typical special contract types are analyzed in detail,to involve right safeguard and the social public interests of real estate leasing contract,involving the public service for in the contract,title retention sales contract,and have advance notice registration of real estate business contract,bankruptcy administrator shall be strictly restricted exercise of the right to remove,the produced results.Finally,from the perspective of the system,the author proposes the adjustment path of the rules that limit the termination right of the bankruptcy administrator pending contract.Second,by adding information disclosure system and improving the supervision and review mechanism,the supporting mechanism of the bankruptcy administrator's right to terminate the pending contract is improved.Thirdly,it proposes to improve the content of legal rules and explore new legislative mode,so as to form a feasible way to restrict the discharge right of bankruptcy administrator.