On The System Of Revocation Of Partial Liquidation

Preferential payment,as a unique concept in bankruptcy law,refers to the transfer of property rights and interests by a bankrupt debtor to certain specific creditors within the statutory critical period,which harms the interests of other creditors.As the debtor’s preferential payment behavior undermines a fair bankruptcy environment and is inconsistent with the legislative purpose of the Bankruptcy Law,the preferential payment revocation system has emerged.The important value of this system is to protect the fair compensation of all creditors,while also maintaining the remaining value of the enterprise and ensuring market transaction safety.Maximizing the protection of the interests of creditors and implementing effective relief for debtors are the key points in building the preferential payment revocation system.This article discusses the legislative loopholes of this system based on its application in judicial practice,and proposes corresponding improvement suggestions for the existing problems.The main problems with the current preference revocation system in China are the lack of clear elements of the offense,incomplete provisions on the exercise of rights,and overly singular exceptions.First,regarding the objective elements,the setting of the preference period lacks rationality,and special regulations for related parties are missing,resulting in an imbalance in the protection of the ordinary creditor’s interests.On the subjective elements,whether to consider the creditor’s subjective intent is not clear,leading to disputes in practical judgments.Secondly,for the scope of the exercise of rights,it is not specified whether the creditor and the bankruptcy administrator,who assume the responsibility of delegated management during the reorganization stage,can exercise the preference revocation right.Lastly,regarding the exception provisions,the expression of benefit to the debtor’s property is too vague,and the five revocation restriction situations listed in "Interpretation of the Bankruptcy Law(II)" are still limited in the complicated judicial practice.The author proposes suggestions to address the legislative loopholes mentioned above.Regarding the general constitutive elements of biased liquidation acts,special provisions for related parties should be added,and the applicable standards during the critical period should be refined.Additionally,the subjective intention of the creditor should be included in the legal framework.As for the exercise of the right to revoke biased liquidation acts,if the bankruptcy administrator fails to exercise this right during the bankruptcy process,eligible creditors should be allowed to exercise it.In the reorganization stage,if the debtor exercises the right to revoke,the bankruptcy administrator’s supervisory role should be emphasized.After the bankruptcy procedure ends,the period for exercising the administrator’s rights may be appropriately extended,or the right to revoke may be granted to the creditor.In terms of exceptions to biased liquidation revocation,to maintain the safety and stability of transactions and ensure a fair balance between the interests of creditors and debtors,appropriate expansion of the provisions of the code is necessary.This should include the introduction of normal commercial transactions,simultaneous transactions,and clear exceptions for statutory and floating security guarantees.