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Journal:Journal of Soochow University(Law Edition)

Key Words:Commercial Bank; Deduction for Repayment; Right of Set-Off; Right of Avoidance

Abstract:Based on the analysis of similar cases, it can be seen that the current judicial practice has large differences in the determination of the nature and effectiveness of bank deductions in bankruptcy procedures. This has led to a dispute between the affirmative theory that can be offset and the negative theory that should be avoided, resulting in the formation of the dilemma of the application of the law in different judgments in the same case. The conflict of the effectiveness of bank deductions for debt repayment is essentially a conflict between legitimate interests, which reflects the different legislative value orientations of bankruptcy set-off rights and avoidance rights. By identifying the different legal interests and functional positioning protected by the right of set-off and avoidance, when applying the two equally, the analysis and judgment should be combined with the individual case to unify the judgment standard. On the premise that the bank’s exercise of the right of set-off is justified, it should focus on the review of the constituent elements of the bankruptcy set-off right to ensure that the bank’s exercise of the right meets the statutory substantive and procedural conditions, and avoid abuse of the set-off right to obtain an excess that is superior to other creditors interest.

Volume:8

Issue:03

Translation or Not:no

Date of Publication:2021-08-19