Research On The Legal Application Of Bankruptcy Offset Of Performance Bond

Since 2015,the number of corporate bankruptcy disputes has increased day by day with the continuous introduction of national policies such as “de-capacity” and“cleaning up zombie companies”.In practice,when an enterprise applies to a bank for the issuance of a letter of guarantee,letter of credit,etc.,the enterprise usually agrees with the bank to deposit a certain amount of money in an account designated by the bank in order to provide counter-guarantee.The performance bond studied in this article is only for this type of margin account.This type of performance bond is the most commonly used in practice,and the most controversial and most important type.Especially in the bankruptcy proceedings,there are big disputes in judicial practice and academic circles as to whether the bank can set off the security deposit and the creditor’s rights to the debtor through the exercise of the bankruptcy offset.Therefore,this article discusses the problems existing in the application of the bankruptcy offset system for this type of margin,and divides the main body of this article into three parts: brief introduction and related issues,legal analysis of the issues raised,and research conclusions and enlightenment:The first part is based on the collection and sorting of relevant cases in which banks exercised the right of bankruptcy offset against performance bonds through China Judicial Documents.com,and selected three cases from the past five years for key analysis.In the three cases in this article,Case 1 and Case 2 are similar in terms of the case,but the judgment results are completely opposite.Although the judgment results of Case 3 are not different in the same case,it is also very valuable to compare the other two cases.Therefore,the first part first briefly introduces the basic situation of the three selected cases,and then discusses the reasons for the judgment of the three cases and the focus of the dispute reflected in the judgment results,and proposes how to determine the nature of the margin and how the bank deducts the margin account funds The issue of whether the bankruptcy offset is valid or not.The second part is a legal analysis of the focal issues reflected in the selected cases.First,it briefly discusses the specific meaning of the margin account,then discusses the nature of bank margin account guarantee,and introduces the three mainstream theories recognized by the middle school on the nature of the account guarantee,namely the right pledge theory,the movable property(money)pledge theory and the creditor’s rights.Debt said.Then this article proposes that the guarantee of the margin account needs to meet the applicable conditions such as the bank margin pledge contract,the specialization of the margin account,and the possession of the creditor.Finally,it analyzes that the bankruptcy offset of funds in the bank deduction margin account should meet the subject,time and procedure,and discusses the legal and theoretical foundations for the bank as a creditor to deduct funds in the margin account to claim bankruptcy offset.The third part is mainly to summarize the previous research content and express the enlightenment obtained from it.This article believes that although the security of the margin account is determined to be the nature of the creditor’s rights or the nature of the property rights,although it has different effects on the judgment path,it does not prevent the court from choosing different judgment paths to support the bank to deduct the margin account to exercise the right of offset The result of the referee.This article affirms that the attribute of the margin account guarantee is regarded as the practice of chattel(money)pledge theory,but believes that the application of the bankruptcy offset system to the margin must meet certain procedural regulatory requirements,and proposes that the bank,as a creditor,deducts the margin account and claims that bankruptcy offset exists Other issues.Therefore,it puts forward several suggestions and thoughts in improving the legislative structure of the bankruptcy offset system for the application of the margin,the optimization of judicial practice,and the measurement of system value...