论我国破产抵销权的行使

发布时间：2018-03-06 07:48

本文选题：破产抵销权　切入点：抵销　出处：《吉林大学》2017年硕士论文　论文类型：学位论文

【摘要】：随着破产法在我国越来越受重视,破产抵销权也得到越来越多的关注。尽管有观点质疑破产抵销权存在的必要,但基于其体现的公平价值、附有的担保功能以及具备的经济快捷地清理债的特点,主流观点认为破产法中应当有抵销制度的一席之地。在抵销制度发达的国家,破产抵销权是其破产法不可分割的一部分。30余年来,我国立法对破产抵销权进行了越来越细致的规范,但破产抵销权仍面临着先天不足和后天失调的困难,与其一并发挥作用的一些制度还不甚完备。面对破产抵销权在适用过程中暴露出的窘态,在立足实践的基础上,借取他山之石,努力构建既适应我国破产实践需要又与破产法内外其他制度协调一致的破产抵销权制度成为完善我国破产法律规范的题中之义。本文包括四个部分,其中,着力探讨了破产抵销权的行使要件和效力,并提出自己的建议。具体而言:第一部分从抵销定义入手,比较国外对抵销的认识与我国的立法现状之间的差异;介绍破产抵销权的定义后,分析其有必要存有的原因,再追溯我国破产抵销权的立法沿革;最后,就其法律地位进行了界定。第二部分就破产抵销权行使的实体要件展开讨论。破产抵销权的实体要件,即可适用于破产抵销权的债权债务的范围和条件。以财产性权利为给付内容,可转化为金钱,相互性,以及成立于破产申请受理之前是债权债务应当具备的积极要件。有的债权债务依法律和法理不应适用于抵销,即据以抵销的债权债务不应具有消极要件。第三部分则对破产抵销权行使的程序要件展开分析。先介绍两个实例后,就债权申报的必要性进行探讨,再对行使主体、时间和方式进行讨论后,梳理了一项破产抵销权行使的大致过程。第四部分是对破产抵销权行使的法律效力的研究。抵销的主张一经到达管理人就应生效,除非管理人经过审查,并请求人民法院确定该破产抵销权不能成立。审查是必要的,但审查及在此中发现的异议不得直接对债权人提出,而应向人民法院起诉以求获得救济。破产抵销权生效后,应当具有溯及力。由此可知,破产抵销权的行使正面临现实需要的检验和冲击,更有着广阔的研究空间。
[Abstract]:With the bankruptcy law being paid more and more attention in our country, the right of set-off has been paid more and more attention. With the security function attached and the characteristic of quick and economical liquidation of debts, the prevailing view is that insolvency law should have a place in the set-off system... in countries with developed systems of set-off, Since the bankruptcy set-off right has been an integral part of the bankruptcy law for more than 30 years, the legislation of our country has made more and more detailed regulations on the bankruptcy set-off right, but the bankruptcy set-off right is still faced with the difficulties of innate deficiency and acquired maladjustment. In the face of the embarrassment exposed in the process of application of the right of set-off in bankruptcy, on the basis of practice, we can borrow the stone of other mountains. It is the meaning of perfecting the legal norms of bankruptcy to construct the bankruptcy right of set-off system which not only meets the needs of our bankruptcy practice but also harmonizes with other systems inside and outside the bankruptcy law. This paper probes into the requirements and effectiveness of the exercise of the right of set-off in bankruptcy and puts forward its own suggestions. The first part begins with the definition of set-off and compares the differences between the understanding of set-off in foreign countries and the present situation of legislation in our country; After introducing the definition of the right of set-off in bankruptcy, this paper analyzes the reasons why it is necessary to exist, and then traces the legislative evolution of the right of set-off in bankruptcy in China. The second part discusses the substantive elements of the exercise of the right of set-off in bankruptcy. The scope and conditions of the creditor's rights and liabilities that can be applied to the right of set-off in bankruptcy. Taking property rights as the content of payment, it can be transformed into money and reciprocity, And the positive elements that a creditor's right should have before the bankruptcy application is accepted. Some claims and liabilities should not be applied to set-off according to law and legal principles, The third part analyzes the procedural elements of the exercise of the right of set-off in bankruptcy. First, two examples are introduced, then the necessity of the declaration of creditor's rights is discussed, and then the subject of exercise is discussed. After discussing the time and method, this paper combs the general process of the exercise of the right of set-off in bankruptcy. Part 4th is a study of the legal effect of the exercise of the right of set-off in bankruptcy. The idea of set-off should take effect as soon as it reaches the administrator. Unless the administrator has examined and requested the people's court to determine that the right of set-off in bankruptcy cannot be established. The examination is necessary, but the examination and the objection found herein shall not be directly raised against the creditor, After the bankruptcy right of set-off comes into effect, it should have retroactive effect. Therefore, the exercise of the right of bankruptcy set-off is facing the test and impact of the reality, and it has a broad research space.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.92

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