Creditor Protection Mechanism of Debtor's Fraudulent Transfer: Comparing Current Legislation of China and the United States

Research Article
Open access

Creditor Protection Mechanism of Debtor's Fraudulent Transfer: Comparing Current Legislation of China and the United States

Yixin Li 1*
  • 1 Shenzhen University    
  • *corresponding author 2020031165@email.szu.edu.cn
Published on 14 September 2023 | https://doi.org/10.54254/2753-7048/10/20230338
LNEP Vol.10
ISSN (Print): 2753-7056
ISSN (Online): 2753-7048
ISBN (Print): 978-1-83558-001-1
ISBN (Online): 978-1-83558-002-8

Abstract

Fraudulent transfer behavior refers to the act of a debtor, in order to evade debt, obstructing or delaying the creditor's realization of their creditor's rights by transferring their own property or establishing a right burden on the property. This concept is originated from the Anglo-American legal system, but similar concepts can also be found in Chinese law system. The fundamental reason why fraudulent transfer behavior needs to be regulated is that it violates the debtor's moral obligations of integrity and fairness towards creditors. Based on a comparative analysis of existing rules in China and the United States from the exercise of the right of avoidance to determination that the assignment is invalid, this article proposes a possible approach to fraudulent transfer rules in China in mainly three aspects: improving the definition of fraudulent transfer, providing creditors with more adequate remedies, and adjusting the burden of proof for creditors to exercise avoidance rights.

Keywords:

raudulent transfer, debt avoidance, creditor protection, creditor revocation rights, Union Fraudulent Transfer Act

Li,Y. (2023). Creditor Protection Mechanism of Debtor's Fraudulent Transfer: Comparing Current Legislation of China and the United States. Lecture Notes in Education Psychology and Public Media,10,307-313.
Export citation

References

[1]. Shiyuan Han. (2018) General Theory of Contract Law (Fourth Edition), Law Press, 2018 Edition.

[2]. Xiu Yin. (2014) On the Judicial Application of the Creditor Avoidance System, in Studies in Private Law (Vol. 15), Law Press.

[3]. Shaowei Mao. (2018) Malicious Collusion, Creditor's Right of Avoidance and Legal Consequences of Contract Invalidation - Commentary on the Substantive Law of Supreme People's Court Guiding Case No. 33. Contemporary Law, 2, 14-25.

[4]. Daixiong Yang. (2014) The Legislative Trade-offs of Malicious Collusion: A Perspective on the Relationship between Malicious Collusion, Derogatory Acts and Conspiracy to Misrepresent. Comparative Law Research, 4.

[5]. Supreme People's Court Case Guidance Work Office, Fourth Division of Civil Trial Court. (2015) The Understanding and Reference of "Swiss Cargill International Inc. v. Fujian Jinshi Oil Manufacturing Co. Ltd. and Other Disputes on Confirmation of Contract Invalidation" - Invalidation of Malicious Traditional Debt Evasion. People's Justice, 18, 8-11.

[6]. White R. (1991) Leveraged buyouts and fraudulent conveyance laws under the bankruptcy code-Like oil and water, they just don't mix. [1991] (01) Annual Survey of American Law, 1, 357-432.

[7]. Jay D. (2004) Three-Step/Four Test Analysis of the Uniform Fraudulent Transfers Act (Draft). Retrieved from http://.www.assetprotectionbook.com/ufta-3-4.pdf.

[8]. Peter A.A., Luther M. D. and J.R. (1985) A Critical A-nalysis of The New Uniform Fraudulent Transfer　Act.University of llinois Law Review, 527.

[9]. Markell B. (1988) Toward true and plain dealing: A theory of fraudulent transfers involving unreasonably small capita. Indiana Law Review, 21,2.

[10]. White R. (1991) Leveraged buyouts and fraudulent conveyance laws under the bankruptcy code-Like oil and water, they just don't mix. Annual Survey of American Law,01.

Cite this article

Li,Y. (2023). Creditor Protection Mechanism of Debtor's Fraudulent Transfer: Comparing Current Legislation of China and the United States. Lecture Notes in Education Psychology and Public Media,10,307-313.

Data availability

The datasets used and/or analyzed during the current study will be available from the authors upon reasonable request.

Disclaimer/Publisher's Note

The statements, opinions and data contained in all publications are solely those of the individual author(s) and contributor(s) and not of EWA Publishing and/or the editor(s). EWA Publishing and/or the editor(s) disclaim responsibility for any injury to people or property resulting from any ideas, methods, instructions or products referred to in the content.

About volume

Volume title: Proceedings of the International Conference on Social Psychology and Humanity Studies

ISBN：978-1-83558-001-1(Print) / 978-1-83558-002-8(Online)
Editor：Faisalabad Matilde Lafuente-Lechuga, Muhammad Idrees
Conference website: https://www.icsphs.org/
Conference date: 24 April 2023
Series: Lecture Notes in Education Psychology and Public Media
Volume number: Vol.10
ISSN：2753-7048(Print) / 2753-7056(Online)

© 2024 by the author(s). Licensee EWA Publishing, Oxford, UK. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license. Authors who publish this series agree to the following terms:
1. Authors retain copyright and grant the series right of first publication with the work simultaneously licensed under a Creative Commons Attribution License that allows others to share the work with an acknowledgment of the work's authorship and initial publication in this series.
2. Authors are able to enter into separate, additional contractual arrangements for the non-exclusive distribution of the series's published version of the work (e.g., post it to an institutional repository or publish it in a book), with an acknowledgment of its initial publication in this series.
3. Authors are permitted and encouraged to post their work online (e.g., in institutional repositories or on their website) prior to and during the submission process, as it can lead to productive exchanges, as well as earlier and greater citation of published work (See Open access policy for details).

References

[1]. Shiyuan Han. (2018) General Theory of Contract Law (Fourth Edition), Law Press, 2018 Edition.

[2]. Xiu Yin. (2014) On the Judicial Application of the Creditor Avoidance System, in Studies in Private Law (Vol. 15), Law Press.

[3]. Shaowei Mao. (2018) Malicious Collusion, Creditor's Right of Avoidance and Legal Consequences of Contract Invalidation - Commentary on the Substantive Law of Supreme People's Court Guiding Case No. 33. Contemporary Law, 2, 14-25.

[4]. Daixiong Yang. (2014) The Legislative Trade-offs of Malicious Collusion: A Perspective on the Relationship between Malicious Collusion, Derogatory Acts and Conspiracy to Misrepresent. Comparative Law Research, 4.

[5]. Supreme People's Court Case Guidance Work Office, Fourth Division of Civil Trial Court. (2015) The Understanding and Reference of "Swiss Cargill International Inc. v. Fujian Jinshi Oil Manufacturing Co. Ltd. and Other Disputes on Confirmation of Contract Invalidation" - Invalidation of Malicious Traditional Debt Evasion. People's Justice, 18, 8-11.

[6]. White R. (1991) Leveraged buyouts and fraudulent conveyance laws under the bankruptcy code-Like oil and water, they just don't mix. [1991] (01) Annual Survey of American Law, 1, 357-432.

[7]. Jay D. (2004) Three-Step/Four Test Analysis of the Uniform Fraudulent Transfers Act (Draft). Retrieved from http://.www.assetprotectionbook.com/ufta-3-4.pdf.

[8]. Peter A.A., Luther M. D. and J.R. (1985) A Critical A-nalysis of The New Uniform Fraudulent Transfer　Act.University of llinois Law Review, 527.

[9]. Markell B. (1988) Toward true and plain dealing: A theory of fraudulent transfers involving unreasonably small capita. Indiana Law Review, 21,2.

[10]. White R. (1991) Leveraged buyouts and fraudulent conveyance laws under the bankruptcy code-Like oil and water, they just don't mix. Annual Survey of American Law,01.

For authors
Guide for authors Policies for authors Aims and scope Subscription Open access policy
For editors
Policies for editors Editorial board
For reviewers
Policies for reviewers Privacy policy

Cookies are used by this site.
Copyright © 2024 EWA Publishing, its licensors, and contributors. All rights reserved, including text and data mining, AI training, and similar technologies.