On The Legal Regulation Of Contracts To Be Performed In Bankruptcy Proceedings

The treatment of contract performance in bankruptcy proceedings is not only related to the interests of creditors and debtors,but also related to the rights and interests of the opposite party of the contract and even the public.China’s treatment of contract performance is to give the bankruptcy administrator the right to choose to continue to perform or terminate the contract,but China’s bankruptcy law does not clarify its legal effect and exercise restrictions,resulting in the phenomenon of different judgments in the same case in judicial practice.By sorting out the judicial decisions on pending contracts in 2021 as a whole,it is found that the courts have different applicable legal bases,and the protection of the opposite parties to the contracts is insufficient.As a result,in the judicial practice of bankruptcy,there are some problems,such as different judicial practice identification of the pending contract,too wide application scope of the bankruptcy administrator’s option,chaotic judicial identification of the priority of bankruptcy claims and vague scope of bankruptcy claims.Firstly,starting with the etymology of the contract to be performed,the concept of "unfinished contract" mentioned in Article 18 of China’s Bankruptcy Law is compared and demonstrated by comparative method,and the principle of maximizing the value of bankruptcy property,the principle of balance of interests and the principle of coordination between bankruptcy law and contract law are analyzed from the perspective of functionalism,which are the abstract standards for dealing with the contract to be performed.On the basis of studying various theories,this paper further analyzes the law of continuing to perform and rescinding the pending contract.