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A Study On The Constituent Elements Of Bankruptcy Biased Repayment Behavior

Posted on:2021-02-25Degree:MasterType:Thesis
Country:ChinaCandidate:Q H ZhengFull Text:PDF
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Since the implementation of the Bankruptcy Law for many years,it has become a consensus that the bankruptcy administrator has the right to apply to the court to revoke the preferential act.The purpose of the bankruptcy revocation system is to protect the overall interests of creditors and realize the value of fair distribution.Through the revocation of the debtor's preferential act,the Bankruptcy Law preserves the debtor's responsible property,maintains equal status among creditors,and realizes the fair distribution of bankruptcy property among all creditors.However,legal norms and judicial practices reflect the difficulties in applying the system of revocation of bankruptcy in China.Considering from legal norms,Articles 31 and 32 of the Bankruptcy Law and several articles of the Judicial Interpretation II of the Bankruptcy Law constitute the bankruptcy revocation system.However,the law has different elements for the revocation of three equal preferential acts,and two types of preferential acts are uniformly regulated in the same clause with three fraudulent acts.There are certain reasons for this arrangement.But it is debatable and needs to be further explored for a more reasonable regulatory path.Considering from judicial practice,due to the generality and abstractness of legal norms,there are some problems in identifying preferential acts,such as how to determine the debtor's bankruptcy boundary within a critical period,what circumstances the preferential results specifically include,and whether the subjective aspects should be taken into consideration.In view of the above issues,there are different opinions in the theoretical discussions,and the opinions of court decisions are also different.By analyzing the case and reading the literature,the author believes that the above problems can be summarized into the constituent elements of preferential act and related issues,and research is carried out from the dimension of constituent elements and solves the problems related to the revocation system of bankruptcy preferential act.From the perspective of legal norms and judicial practice,this paper interprets the legal norms,analyzes the connotation of legislation,studies the cases of dismissal of bankruptcy preferential acts,and summarizes the judgement disputes and opinions in practice.Combining the theoretical research and experience of extraterritorial legal systems,this paper explores the normative path and refereeing thought of the constituent elements of preferential acts that are adapted to China's present situation.The basic idea of carrying out research in this paper is to ask questions,analyze questions,and solve problems.The first chapter is divided into two parts: analyzing the present situation and pointing out problems.First of all,the basic connotation of the preferential acts and the normative purpose of its revocation system are clarified from the perspective of China's legislation,and the legislation of the preference revocation system in the Bankruptcy Law is summarized.By analyzing different refereeing ideas in practical cases,the problems existing in the system of preference revocation system are summarized.It points out that the normative model and content of the elements of preferencial act are unclear,the law application of objective elements is in a difficult position,and whether subjective elements are included in the elements of bankruptcy preferencial act is in dispute.These issues will be discussed separately in the following three chapters.The second chapter focuses on the normative model of the constituent elements of preferencial act.Here are two ideas to solve the problem.Solve the first problem,that is,the problem of negligence in the constituent elements of preferencial act.By analyzing the reasons for the problem,it puts forward the viewpoints and reasons for uniformly regulating the three types of preferencial acts.Solve the second problem,that is,the content of the elements of the preferencial acts is not clear.With reference to two typical normative models in the extraterritorial legal system,the system logic is analyzed separately.Based on the interpretation of China's legislative norms,it is proposed that the norms of subjective and objective elements should be selected as the constituent elements of preferencial act.The third chapter responds to the legal application of the objective elements of preferencial act.Objective elements include critical periods,bankruptcy boundary,and results.First,it mainly focuses on the identification of the bankruptcy boundary in the critical period and the determination of the results of preferencial act.Clarify the relationship between the critical period and the bankruptcy boundary,and explore the reasonable determination criteria for reaching the bankruptcy boundary during the critical period.Secondly,the results are specifically explored.Based on the normative purpose of the preference revocation system,the determination of the preferencial result should start from the perspective of creditors' rights.Article 32 of the Bankruptcy Law "except for the benefit of the debtor's property" makes exceptions in terms of results,that is to say,acts that conform to the characterization of preference bring such results,and the act is not subject to revocation.Common situations can be summarized from practical cases,and then the refereeing thought can be clear.The fourth chapter discusses how to consider the subjective elements of preferencial act,including the choice of subjective element mode and subjective identification rules.Discuss the typical three types of subjective element recognition modes,their emphasis and effects,and improve the subjective malicious presumption mode based on the laws of practice.Exploring the rationality and feasibility of allowing subjective goodwill defenses,and making the subjective determination more operable by exploring the methods of objective identification.At the same time,due to its superior information status,related creditors are subjectively more prone to "subjective malice".Concerned about the necessity and rationality of strict special regulations for related creditors.With a view to making the consideration of subjective elements not only play a role in balancing interests,but also make up for possible loopholes in related creditors.
Keywords/Search Tags:Preferential act, Constituent elements, Objective elements, Subjective elements
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