On The Legal Application Of The Bankruptcy Set-off Right System

The bankruptcy offset system inherits the offset system in the civil law,which absorbs the advantages of the offset right in the civil law,and combines the characteristics of the bankruptcy law itself to develop into a unique bankruptcy legal system.It can protect the interests of specific creditors and continue the guarantee function of offset in civil and commercial transactions.At the same time,in order to protect the interests of most other creditors,it sets a prohibition of offset.At the beginning of the legislation of Chinese bankruptcy law,the right of offset was allowed to be exercised in the bankruptcy law,and at the same time,the prohibition of the right of set-off was stipulated,and it was improved in the judicial interpretation of the Supreme People’s Court in 2013,thus establishing Chinese bankruptcy offset right.The rules of exercise and review procedures.Judging from the judicial judgments from 2007 to 2020,the number of cases of bankruptcy offsetting disputes has been increasing,which has improved its applicability.However,it is not difficult to find that there are many problems that need to be resolved in the application of the bankruptcy offset system in China:First,it requires confirmation of the creditor’s rights as a prerequisite for the exercise of the right of set-off,but the applicable legal basis is different;the second is based on different legal provisions,and two diametrically opposed judgments are made on bank deductions;the third is the triangular offset,the court hold a negative attitude,but there are also some cases that believe that personality confusion can eliminate the inconsistency of the subject and exercise the right of offset;fourth is whether the bankruptcy procedure can limit the time for the exercise of the right of bankruptcy offset.In response to the problems of bankruptcy offset rights in judicial practice,the higher people’s courts represented by Beijing and Jiangsu have made detailed regulations on the application of bankruptcy offset rights to guide local judicial judgments.Based on domestic practical exploration experience and foreign related theoretical research,offset rights system can be improved in the following aspects:The first is to improve the legislation,the key is to improve the procedural elements of the right of offset;the second is to improve it from the judicial perspective,mainly from the judgment rules of bank offset,triangle offset and prohibition of offset.