Analysis And Prevention Of The Principle Of Evading Debts And Means Of Evading Debts

Debt, as a legal concept, refers to the civil legal relationship between specific parties who can request certain payment.

On a non legal level, the average person considers debt as a relationship between a party's default on a certain amount of money or property due to a certain cause.

This article is mainly about the debt of property.

It is an economic phenomenon in recent years.

Debt avoidance refers to the behavior of debtors or debtors through various essential violations of the principle of good faith, which can cause debts and change the legal status so as not to repay debts or repay debts.

The harm of debt avoidance is obvious. It causes creditors to increase the cost of realizing creditor's rights and even fail to realize creditor's rights, which causes enterprises to produce bad assets, so that market credit is questioned, so that market pactions are full of crises, financial order is destroyed, and courts are faced with many difficulties.

In this article, the author analyzes and analyzes the principle of escape and the means of evading debts.

The principle of evading debt from the perspective of the characteristics of debt, as a system of civil law, has its own particularity.

And the particularity of these debts will become a powerful weapon to escape debt.

The principle of relativity between 1 and creditor's rights.

As a relative right, creditor's rights and creditor's rights have some limitations.

When the ordinary creditor's rights conflict with other rights, the ordinary creditor's rights are often placed in a subordinate position.

The main points are: (1) the principle of priority in real right.

In order to escape debt, the debtor set up another property right against the creditor's right, resulting in the creditor's rights can not be realized finally.

(2) the principle of priority of special claims.

In order to escape debt, the debtor set up special creditor's rights against the ordinary creditor's rights, resulting in the common creditor's rights can not be realized.

2, debt compatibility and equality.

Compatibility refers to the existence of several creditors in the same subject matter. Equality is an index creditor's equal effect on a common debtor with several ordinary claims, and it is not effective because of its establishment.

Since many claims are compatible and equal, however, there is a natural order for debtors to pay off debts.

When the same debtor faces multiple creditors, though there is no legal order between them, objectively, there is a natural order.

Individual debtors may escape debt in accordance with the principle of first performance and first payment.

Corporate debtors may enter the bankruptcy proceedings and implement debt avoidance in bankruptcy proceedings.

The principle of debt avoidance derived from the perspective of the main body of debt: two, 3, the principle of subject specificity.

An important feature of debt is that the subject is specific, the creditor is specific, and the debt entity is also specific.

Generally speaking, if creditors want to realize their debts, they can only claim their rights to the debtors, and not claim the claims to others other than the debtors.

That is to say, if the debtor has to avoid debt, he will be able to escape debt if he can "get rid of it".

The main performance is to make use of the special relationship between shareholders and companies, companies and employees, husband and wife, agents and agents.

4, the principle of legal person qualification.

After obtaining the legal person qualification, enterprises and institutions have the corresponding independent civil rights ability and civil capacity, independently undertake the corresponding legal liability, while the legal person's property is not enough to pay debts, generally, the contributor or promoter of the legal person is not liable.

It is precisely because of this principle that the debtor can be used to escape debts.

The common method is bankruptcy and debt avoidance.

5 and principal pformation principle.

In the name of the A subject with sufficient solvency, the company has become a B entity with no debt paying ability through various planning and operation.

The main measures are: restructuring of enterprises and institutions, merger and merger of companies, acquisition of companies, pfer of contracts, etc.

6, the principle of extinction.

Because the main body of debt is specific, only the specific debtor subject can claim creditor's rights.

Therefore, another reason can be derived. That is, if creditors can not find a specific debtor or a specific debtor has disappeared, then it will be very difficult for creditors to realize their claims.

The common principles derived from this principle include: "missing" debt avoidance, "suicide" escape debt, "wills, bequeath" to escape debts, "inheritance" to escape debts, "revoke business license" to evading debts, "write off" to escape debts and so on.

The principle of debt avoidance derived from the content of debt (three): 7 and the ineffective principle of self starting.

In order to avoid debt, the debtor designed a trap so that both parties' civil actions or contracts were revoked or found to be null and void, because the invalidity or withdrawal of the system did not produce legal effect from the beginning, so they took advantage of the plane to evade debts.

8, the principle of contract defense.

The contract parties abuse the contract law or the contractual defense right, or the debtor's false contract law or the relevant defenses of the contract, so as to fight against the creditor's claim so as to avoid the debt.

The four principles of debt avoidance derived from the performance of debt: 9 and the principle of failure to perform.

The performance of the company does not mean that the debtor has no ability to perform objectively.

In order to implement debt avoidance, the debtor pfers property, or gives or pfers the property at a low price, or loses his or her exercise of (or even abandons) the creditor's right to the third party, so that the debtor is objectively unable to repay the debt, so that the creditor can not realize the creditor's rights.

The contract law has set up the system of "cancellation right" and "subrogation" in order to prevent such debt avoidance.

However, there are still many problems to be solved in order to realize the right of rescission and the right of subrogation.

10, the principle of defective performance.

The debtor deliberately fails to perform his debts in accordance with the stipulations of the law or the quantity, quality, manner, time and place stipulated in the contract, so that the creditor's creditor's rights are lost, so as to achieve the purpose of avoiding debts.

11, the principle of delay in performance.

The debtor can perform and does not perform the debt according to the statutory or agreed time, but procrastinate to achieve the purpose of debt avoidance.

12, breach of contract principle.

In some special cases, the debtor has a comprehensive balance of interests. He believes that the interests of breach of contract breaking contract are far greater than the corresponding liabilities due to breach of contract, and the debtor therefore chooses to refuse to perform the debt to enable creditors to lose their original planned interests.

(five) the principle of debt avoidance derived from the guarantee of debt: 13 and the principle of guarantee failure.

In order to implement debt avoidance, help debtors to escape debt or to exempt the Guarantor from liability, the debtor or guarantor designs a trap so that the guaranty which has been regarded as normal becomes invalid or revoked, causing the creditor's rights to lose the guarantee and the final creditor's rights can not be realized.

14, guarantee conflict principle.

There are many security interests in the same subject, and conflicts between the security interests have led to the loss of the creditor's guarantee.

The principle of debt avoidance derived from the judicial remedy of creditor's rights (six): 15, the principle of procedural defects.

In order to avoid debt, the debtor used the characteristics of negotiation, arbitration, and the procedural and mechanical nature of the proceedings to win the time of escape or to avoid or exempt debts.

16, the principle of burden of proof.

The debtor makes use of the principle of burden of proof to make creditors unable to achieve creditor's rights because of inability to give evidence or invalidation of evidence.

17, the principle of judicial authority.

By using the principles of certainty, constraint and authority of judicial action, the debtor, through judicial personnel, implements the false judicial act and finally achieves the purpose of evading debts.

18 and the principle of notarial effectiveness.

Notarization is a proof of the authenticity and legality of a state notary public on a legal act or a legal meaning of a document or fact.

Debtors may borrow "Notarization" to implement debt avoidance.

Even if the creditor knows clearly that the content of notarization is not a fact or implies an illegal purpose or factor, because notarization has special evidence effect and enforcement power, it will be difficult to realize creditor's rights.

The seven principles of debt avoidance derived from the extinction of debt are 19 and mutual cancellation.

The debtor improperly applies the offsetting method to implement debt avoidance.

The eight principles derived from the other principles are 20 and third principles of good faith.

In order to protect the stability of pactions, many laws have set up a system of bona fide third party protection in many laws.

When there is a conflict of interest between the bona fide third party and the creditor, the law chooses to protect the third party in good faith.

It is also easy for debtors to pfer assets to avoid debts.

21, principle of registration of real right.

The use of real estate and quasi real property registration system is a mechanical and lagging property.

22, price evaluation principle.

In order to escape debt, the debtor often uses the uncertainty of the price of property and the non-standard situation of the intermediary agencies of price evaluation in China, and underestimates the value of property by low value or high value, so as to escape debts.

23, the principle of debt to equity swap.

There are two completely different rights between creditor's rights and stock rights. Creditor's rights are creditors' right to request debtors to pay certain rights, while equity refers to the right of dividends and participation of shareholders.

The two are insurmountable.

When the creditor's rights can not be realized, the creditor's abandonment of the creditor's rights and the acquisition of stock rights are in itself a "bad plan" which is inevitable. In the process of debt to equity swap, it is easy to escape debts.

24, principle of conversion between public and private interests.

The debtor makes use of the factors that are inconsistent between the interests of the property owners and the interests of the operators in the state-owned and collective enterprises and institutions, by giving the managers some personal benefits so as to achieve the purpose of escaping the bonds.

25, non legal factor interference principle.

In addition to the principle that the legal factor itself may be used to escape debt, there are still a large number of non legal factors resulting in debt avoidance.

For example, institutional loopholes, judicial corruption, ineffective implementation, government intervention, local protection, oversight of state-owned assets management and other factors.

By analyzing the above principles, we can see that if the debtor can escape debts, it will be impossible for us to guard against debt. From the debt generation, the guarantee of debt, the existence of debt, the execution of debt to the elimination of debt, every link in the whole process of will be dodge.

From the above principle of escape, we can derive a variety of means to escape debt, and some escape means are even merged into a number of principles of escape.

The following are some common ways to escape debt.

(1) bankruptcy and debt avoidance.

It is a behavior of enterprises to escape debts by means of bankruptcy proceedings and violation of good faith principle in bankruptcy management.

The common manifestations of 1. are collectively or privately owned enterprises, which are individual enterprises or other organizations without legal person conditions.

2. the government orders bankruptcy, and it will be a bankruptcy target instead of debt repayment.

3. the court or the liquidation group forcibly negates the property rights on the bankrupt property and makes the secured creditor's rights become an ordinary creditor's right.

Before 4. declares bankruptcy, the debtor illegally reduces the property that can be repaid.

5. underestimated the high value of the bankrupt property, thereby reducing the rate of liquidation.

6. intentionally increases bankruptcy costs and taxes, thereby reducing distributable assets.

7. only liquidate fixed assets, do not liquidate the rights assets, or terminate the bankruptcy proceedings before the liquidation of property is completed.

8. temporarily set mortgage or carry out assault payment to related creditor's rights and increase the burden of bankruptcy property.

The bankruptcy and debt avoidance of the company uses the principle of "corporate personality" and "the principle of inability to perform", that is, the corporate legal system is independently responsible. If an enterprise legal person can not repay the debts due, it may enter the bankruptcy proceedings.

The characteristic of bankruptcy is "how much, how much, how much", and the bankruptcy proceedings end, and the unliquidated claims are no longer paid off.

And that's the key to creating debt.

The ancients said, "running a monk can't run away from the temple", but bankruptcy has run away from "monks" and "Temple".

In view of the fact that a legal person enterprise is an individual enterprise or other organization that does not have a legal person condition, it should request the court to confirm that it is the main body of the illegal person (regardless of the nature of the business registration). It does not apply to the bankruptcy provisions. It decides to reject its bankruptcy application, and tells the creditors to request the judicial department to protect their legitimate rights and interests in time in accordance with the civil law and the civil procedure law and the relevant judicial interpretation, so as to frustrate the debtor's attempt to escape debts through principal fraud.