중국 파산법상 개별변제 부인권의 성립요건

Abstract

The individual repayment avoidance right is a key system that reflects the principle of fairness of the Bankruptcy Act, and plays an important role in maintaining the safety of transactions, defending good faith, and ensuring market order. In real life, debtors often reimburse certain creditors, such as relatives, friends, and stakeholders, first during the bankruptcy threshold period, and infringe on the interests of other creditors. The function of the individual repayment avoidance right is to promote fair repayment between creditors. Therefore, it occupies an important position in the bankruptcy law of all countries. As the criterion for judging individual repayment avoidance right, the constitutive elements of legal provisions are the core of avoidance right system. In the Bankruptcy Law of China, the main provisions of individual repayment avoidance right are stipulate in Article 32 of the Enterprise Bankruptcy Law of the People's Republic of China, Article 41 of the Regulations of Shenzhen Special Economic Zone on Personal Bankruptcy and some relevant judicial interpretations. However, china’s legal provisions on the constituent elements of individual repayment avoidance right are relatively simple and problematic. There are many problems such as, the omission of the “insider clause” in the behavior element, inconsistency of the period element, irrationality of the exception element, the proof dilemma of the element of the cause of bankruptcy, and the absence of the provisions on the subjective state element. It is inevitably affecting the normal functioning of the system. Therefore, based on China's bankruptcy system of legislative and judicial reality, the thesis introduces the legislation status of the constitutive elements of the individual repayment avoidance right, and analyzes the loopholes and deficiencies in the legal regulations. Then, aiming at the above problems, the thesis puts forward the improvement plan. It includes adding relevant clauses of “insider” in the behavior element, improving the starting point of the period element, retaining and revising the burden of proof of elements of the cause of bankruptcy, introducing subjective state elements, Optimizing the exception clause and so on. At present, China is in the critical period of revising the Enterprise Bankruptcy Law and implementing the Shenzhen Personal Bankruptcy Regulations. It is urgent and necessary to systematically study the constitutive element so find individual repayment avoidance right. It is hoped that the research in this thesis can promote the further development of the individual repayment avoidance right system in China.