What is a bankruptcy clawback? What is the classification of bankruptcy retrieval

1. The bankruptcy recovery right is divided into general recovery rights and special recovery rights, the former is basically stipulated in the bankruptcy laws of all countries, and the names may be different, and the latter is generally embodied in the seller's recovery right in China, and there are no provisions on the right of recovery and the right of substitution for compensation in China.

2. Although the bankruptcy recovery right is theoretically determined as the right of recovery in the bankruptcy law, the right of recovery is based on civil law and is embodied in the return of the original goods, and it is only called the bankruptcy recovery right because of its exercise characteristics in the bankruptcy law.

Legal Analysis: Classification of Bankruptcy Recovery Rights:

1) The right to take back like a potato.

After the people's court accepts the bankruptcy application, the property in the possession of the debtor that does not belong to the debtor may be recovered by the right holder through the administrator. However, except as otherwise provided in this Law.

The exercise of the general right of retrieval is usually limited to the return of the original item. If the original has been sold or lost by the debtor before the bankruptcy case is accepted, the right of repossession of the obligee is extinguished, and the right of repossession can only be claimed as the bankruptcy creditor's right on the basis of the price, i.e., the amount of direct loss, except for the right of subrogation.

2) The seller's right of recovery.

When the people's court accepts the bankruptcy application, if the seller has shipped the subject matter of the sale to the debtor as the buyer, and the debtor has not received and has not paid the full price, the seller may take back the subject matter in transit. However, the administrator may request the seller to deliver the subject matter by paying the full amount of the bank's distressed price.

Legal basis: Enterprise Bankruptcy Law of the People's Republic of China Article 39 When the people's court accepts the bankruptcy application, if the seller has shipped the subject matter of the sale to the debtor who is acting as the buyer, and the debtor has not received and has not paid the full price, the seller may take back the subject matter in transit. However, the administrator may request the seller to deliver the subject matter by paying the full price.

The right of recovery in the bankruptcy law refers to the right of the right holder of the property to recover the property that was not originally the property of the debtor from the debtor's property managed and controlled by the administrator without following the bankruptcy procedure.

The causes and effects of the right to clawback in bankruptcy.

The right of bankruptcy recovery is a system of rights established to eliminate or correct the inconsistency between the bankruptcy administrator's possession of the actual property under management and the statutory distribution of wealth and property. Actual property is the general term for all property taken over by the bankruptcy administrator in accordance with the current situation of the property in the bankruptcy possession. Statutory distribution of property is the liability property of the bankrupt who can be distributed to creditors in accordance with the bankruptcy procedure.

Bankruptcy proceedings are general enforcement procedures for the property of the bankrupt, and the declaration of bankruptcy has the effect of preserving all the property in the possession of the bankrupt. When bankruptcy is declared, regardless of whether the property in the possession of the bankrupt person is the property for which the bankrupt person is responsible, it shall be transferred to the possession and disposal of the bankruptcy administrator, and no one shall dispose of the property in the possession of the bankrupt person without the consent of the bankruptcy administrator. Moreover, the law does not require the bankruptcy representative to ascertain the property for which the bankrupt is liable when taking over the property in the possession of the bankrupt.

Therefore, when the bankruptcy administrator takes over the property of the bankrupt, in order to protect the common repayment interests of the creditors, it should in fact take over all the property in the possession of the bankrupt person without distinction. In this way, it would be possible to include the property of others who were not part of the estate for administration in the estate. The property of others in the possession of the bankruptcy administrator cannot be distributed as bankruptcy estate, and the real right holder shall be allowed to retrieve its property.

As a result, the bankruptcy recovery system was created.

The bankruptcy recovery right has two functions, one is to help the property right holder realize the right to the property, and the other is to help the bankruptcy administrator correct the phenomenon of possession of other people's property that should not be distributed, and effectively exclude the property of others from the bankruptcy estate.

Legal provisions on the right of recovery in bankruptcy.

According to Article 38 of the Bankruptcy Law, after the court accepts the bankruptcy application, the property in the possession of the debtor that does not belong to the debtor can be recovered by the right holder through the administrator. The main function of the right of recovery system in bankruptcy law is to protect the legitimate rights and interests of the owners and dispositions of the property. The ownership or control of the subject matter by the obligee will not be shaken or even lost by the person in possession of the subject matter due to bankruptcy proceedings, nor will the property be listed as a bankruptcy estate and included in the scope of creditors' common ownership because the debtor's property is taken over by the bankruptcy administrator.

The result of the exercise of the right of retrieval is that the subject matter is separated from the comrade-in-arms of the administrator and the possession of the person with the right of retrieval is restored.

Legal Analysis: The main function of the bankruptcy recovery system in the bankruptcy law is to protect the legitimate rights and interests of the owners and rulers of the property. The right holder's ownership or control over the subject matter will not be shaken or even lost by its possessor due to bankruptcy proceedings, nor will it be necessary for Hongmu to list the property as a bankruptcy estate and include it in the scope of creditors' common ownership because the debtor's property is taken over by the bankruptcy administrator.

Legal basis: Enterprise Bankruptcy Law of the People's Republic of China Article 38 After the people's court accepts the bankruptcy application, the property in the possession of the debtor that does not belong to the debtor may be recovered by the right holder through the administrator. However, unless otherwise provided for in this Law.

The so-called right of recovery means that when the bankruptcy liquidation group takes over the property transferred by the bankrupt enterprise, the owner has the right to take back the part of the property that does not belong to the bankrupt enterprise from the bankruptcy administrator.

When exercising the right of retrieval, the parties need to pay attention to: (1) There is a time limit for exercising the right of retrieval. The right of recovery under the bankruptcy law can only be formed after the bankruptcy is declared.

If the right of recovery is not exercised before the distribution of the bankruptcy estate, it shall be deemed to have waived the right of recovery. If the right of recovery is exercised after the distribution of the bankruptcy property, the effect of legal filing shall not occur. (2) The exercise of the right of retrieval is not restricted by bankruptcy proceedings, nor does it need to go through litigation procedures (when there is no dispute), but the retrieval of property must be exercised through the liquidation group, and the property shall not be taken from the bankrupt enterprise without authorization.

3) If the right holder has the corresponding obligation to pay when retrieving the property such as fixed crop and custody, it shall pay the processing and storage expenses to the liquidation group before it can be recovered. (4) The exercise of the right of retrieval is limited to the retrieval of the original item.

Article 642 of the Civil Code: Where the parties agree that the seller retains ownership of the subject matter of the contract, and before the transfer of ownership of the subject matter, the buyer has any of the following circumstances and causes damage to the seller, the seller has the right to take back the subject matter unless otherwise agreed by the parties:

1) Failure to pay the price as agreed, and failure to pay within a reasonable period of time after being reminded;

2) Failure to complete specific conditions as agreed;

3) Selling, pledging, or making other improper dispositions of the subject matter.

The seller may negotiate with the buyer to take back the subject matter; If the negotiation fails, the procedures for the realization of the security interest may be applied by reference.

Characteristics of the bankruptcy recovery right: 1. The exercise of the recovery right does not go through the bankruptcy procedure, but the bankruptcy administrator must be the counterpart. The bankruptcy administrator's mistaken possession of other people's property that is not part of the bankrupt person under his own control has in fact constituted a "bona fide infringement" of the property of others, but at this time, the right to manage and dispose of the property is still exercised by the bankruptcy administrator, and any form of disposal of the bankrupt property must go through the bankruptcy administrator.

However, the exercise of the right of repossession and the recovery of its own property is not an acceptance of the repayment of creditor's rights, so there is no need to go through bankruptcy proceedings. 2. The subject matter of the right of retrieval is the possessed property that does not belong to the bankrupt. The bankrupt person's possession of the subject matter of the right of recovery may be either present possession, past possession, or imminent possession.

Different forms of possession give rise to different types of retrieval rights. Possession now forms a general right of retrieval, once possession forms a right of retrieval for compensation, and a special right of retrieval evolves from imminent possession. Any kind of possession, as long as its subject matter does not belong to the bankrupt, constitutes a legal ground for the right of recovery.

3. The person with the right of retrieval has the right of ownership or control over the subject matter of the right of retrieval. The right of retrieval formed for the possession of the right of repossession is based on the property right under the civil law, and the right of repossession formed for the disposal of the right of repossession is based on the creditor's right under the civil law, which distinguishes it from the right of exclusion. 4. The right of retrieval is based on ownership and other property rights, and has the nature of property rights.

The exercise of the right of retrieval is absolute and unconditional. According to the theory of civil law, only in cases where the possession is illegal or the possession is uncaused, can the right to claim the return of property be exercised. If the possessor is in possession during the period of lawful delay, the claim cannot be discussed.

Unlike the right of withdrawal, as long as the possessor has been declared bankrupt, it can be exercised regardless of whether the possession is lawful or whether the period has expired.

Article 31 of the Enterprise Bankruptcy Law of the People's Republic of China Article 31 Within one year before the people's court accepts the bankruptcy application, the administrator has the right to request the people's court to revoke the following acts involving the debtor's property: (1) transferring property free of charge; (2) Conducting transactions at an obviously unreasonable level; (3) providing property security for debts that are not secured by property; (4) Paying off undue debts in advance; (5) Waiver of creditor's rights.