중국 파산절차에서 편파적 담보행위 취소권에 관한 고찰

Abstract

Article 31 of the Enterprise Bankruptcy Law stipulates that the subject of the cancellation right of the biased guarantee act of "providing property guarantee for debts without property guarantee" is the bankruptcy administrator, while the supplementary exercise of the cancellation right by creditors does not include the biased guarantee act. The reasons are as follows: first, the biased guarantee act belongs to biased act rather than fraud act, but the biased guarantee act will reduce the proportion of other creditors' compensation as a result, which is essentially the same as fraud act. Second, the creditor's supplementary exercise is based on the Contract Law, while the bankruptcy administrator's exercise is based on the Enterprise Bankruptcy Law. The objectives of the two laws are different. However, the two laws should uniformly apply the rules on the same matter, that is, the creditor should be given the right to cancel the biased guarantee act in the supplementary exercise of the cancellation right. The nature of the debt that the biased guarantee behavior points to is its own debt rather than the debt of others. It is an existing debt rather than a new debt. Only in this way can it comply with the legislative purpose of the bankruptcy law to realize the fair repayment of creditors. However, it is necessary to prevent the behavior of avoiding revocation of biased guarantee by borrowing third-party guarantees and debtors providing counter guarantees and borrowing new to repay old debts, while maintaining a balance between the realization of bankruptcy law objectives and the integrity of the guarantee system based on true intentions.There are omissions, ambiguities and contradictions in the plaintiff, defendant, period and jurisdiction of the cancellation right of the biased guarantee act. There are two possibilities of interpretation for the consequences of the creditor's supplementary exercise, but there is only one possibility of interpretation for the consequences of the bankruptcy administrator's exercise, which constitutes a contradiction. We should still aim at unifying the applicable rules of the two laws, make a legal and theoretical interpretation for the plaintiff, defendant, period and jurisdiction of the cancellation right, and adhere to the property "warehousing principle" for the consequences of its exercise. On the attribution of the bankruptcy administrator's failure to exercise the cancellation right of the biased guarantee act, we should adhere to the substantialism of the exercise of the cancellation right as the basis for judging the responsibility of the bankruptcy administrator.