Study On The Right Of Insolvency Representatives To Choose To Perform Contracts

Enterprise bankruptcy is an economic and legal phenomenon that inevitably occurs at a certain stage of the development of market economy.Article 18 of the Enterprise Bankruptcy Law stipulates that the insolvency representative decides to continue to perform or terminate a contract that was formed before the court decides to accept the bankruptcy application and neither party has completed the performance of the contract.This right to choose and perform a contract is expressly granted by the Enterprise Bankruptcy Law,and breaks the general rules in the Contract Part of the Civil Code,re-allocating the economic resources of the parties behind the contract,and reregulating the economic order originally formed by the performance of the contract,forming a unique special law rule in this field of bankruptcy law.However,its specific application and practical operation still have many controversies in judicial practice.First of all,as a prerequisite for the exercise of the bankruptcy representative’s right to choose performance,China’s Enterprise Bankruptcy Law is not clear enough to define and identify unfulfilled contracts,and only makes general provisions on the handling rules for the performance of contracts,and does not make specific distinctions according to special circumstances.Second,the regulatory procedures and the criteria for measuring benefits in the exercise of the manager’s right to choose performance have not yet been unified.China’s Bankruptcy Enterprise Law does not impose specific restrictions on the bankruptcy representative’s exercise of the right to choose performance,and in practice it is easy for the bankruptcy administrator to abuse the right to choose contracts.Finally,the legal effect of the administrator’s exercise of the right to choose performance has not yet been perfected.The nature of the claims arising from the administrator’s choice to continue to perform or rescind the contract is a common benefit debt or an ordinary claim,and whether there is retroactivity,are still disputed in judicial practice.Therefore,China’s Enterprise Bankruptcy Law should further clarify the scope of the contract to be performed,establish the criteria for the bankruptcy administrator to exercise the right to choose performance,and improve the legal effect of the exercise of the right to choose performance,so as to ensure that the administrator performs its management duties with the principle of maximizing the interests of creditors as the core.From the perspective of common benefit,this paper analyzes the principles,subjects,objects and legal effects of the exercise of the right of choice,and puts forward some suggestions on existing judicial issues,so as to help bankruptcy practice play a greater role in the environment of rule of law,properly resolve mass disputes,and promote the improvement of the bankruptcy legal system.