英文摘要 |
A clear definition of executory contract is the basis of effective treatment. Two essential doctrines have been formed in the U. S. bankruptcy law regarding the definition of executory contract: the material breach test and the functional approach. The material breach test contradicts the relevant provisions of contract law in China and turns the dispute to the definition of material breach. The existing path of distinguishing primary obligation and collateral obligation in China is inconsistent with the inherent value of the executory contract regime. Meanwhile, the problem of obligation groups in contract law itself is also controversial in civil law. The functional approach is reasonable to some extent, but its inherent limitations should not be ignored, and its internal logic is incompatible with Chinas contract law theory. The ''restricted functional approach'' should be adopted to analyze the definition of executory contract. Therefore, attention should be paid to the contractual duty of the debtor, which means a contract that the debtor has not fulfilled its obligations is an executory contract. The consequences of an imbalance of interests that the functional approach may cause can be effectively avoided by applying the ''nodified rejection doctrine.'' |