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11 Asian J.L. & Econ. 1 (2020)

handle is hein.journals/ajle11 and id is 1 raw text is: DE CRUYTER Asian Journal of Law and Economics. 2020; 20190022 Shuxia Song' / LuobingXu' / Feimin Wang' Research on Bankruptcy Trustee's Right of Rescission of Contract ' College of Humanities and Law, North China University of Technology, Beijing, China, E-mail: singo517@163.com Abstract: Article 18, paragraph 1, of Law of the People's Republic of China on Enterprise Bankruptcy gives the bankruptcy trustee the right to rescind the performance of executory contract. It also stipulates the time limit and legal effect, but it does not further set standards and restrict the rescission of specific contracts. The purpose of This Paper is to explore and establish norms for the exercise of bankruptcy trustee's rescission rights under different situations to meet the practical needs. Based on the research results of domestic and foreign scholars, this paper puts forward the standard of Special Interest Protection for Specific Creditors to balance the interest conflicts between individual creditors, debtors and other creditors. Finally, this paper argues that it is necessary to set certain standards and make appropriate restrictions on the exercise of the bankruptcy trustee's right to rescission the contract and improve the system. Keywords: bankruptcy trustee, executory contract, exercise period, standard of rescission right DOI: 10.1515/ajle-2019-0022 1 Overview of the Trustee's Option The bankruptcy trustee's contract option is the general term given by the bankruptcy theory circle to the bankruptcy trustee in Article 18 of the bankruptcy law, which gives the bankruptcy trustee the right to decide whether to cancel or continue to perform the contract that was established before the bankruptcy application was accepted and the debtor and the other party have not fulfilled the contract. This paper holds that the rea- sons why the bankruptcy law gives the bankruptcy trustee the contract option are as follows: one is to affirm the status and role of the bankruptcy trustee in the bankruptcy proceedings; the other is to maximize the value of the bankruptcy consortium through the performance of the bankruptcy trustee; thirdly is to ultimately con- sider for the benefit of all creditors. However, if the bankruptcy law is re-examined from the content of Article 1 of the current bankruptcy law, the modern bankruptcy law should take into account the protection of the legitimate rights and interests of creditors and debtors and safeguard the order of socialist market economy. This paper argues that today's bankruptcy law has been endowed with the spirit of economic law to varying degrees. Therefore, it is necessary to set certain standards and impose appropriate restrictions on the exercise of the contract option of bankruptcy trustees. According to the content of the entire article of Article 18 of the Bankruptcy Law, the first paragraph of this article is about the bankruptcy trustee's opinion and the right to cancel of executory contract. The second paragraph of this article is about the bankruptcy trustee's right to continue to perform the contract. According to the provisions of paragraph 2 of Article 18, if the bankruptcy trustee decides to continue to perform the contract, the other party shall continue to perform. But the other party has the right to request the trustee to provide the corresponding guarantee. If the trustee cannot provide the guarantee, it is deemed to be terminated. For bankruptcy trustee, if they decide to continue to perform the contract, the other party should of course continue to perform, which is conform with the spirit of the contract law completely; for the other party, considering the actual operation status of the bankrupt enterprise, the bankruptcy law gives the other party the right to require the bankruptcy trustee to provide security for the other party to protect the contractual interests, which is also conform with the spirit of the contract law. In summary, this paper argues that the provisions of Article 18, paragraph 2, of the Bankruptcy Law on the continuation of the contract are not only in line with the spirit of the contract law, but also in line with the spirit of the bankruptcy law. Therefore, this paper will not repeat Article 18, paragraph 2, it will only analyze and discuss the content of Article 18, paragraph 1, that is, the bankruptcy trustee's right of rescission of contract. Shuxia Song is the corresponding author. © 2020 Walter de Gruyter GmbH, Berlin/Boston. 1

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