未履行或未完全履行的双务合同在破产程序中的命运——德国支付不能法第103条

The Treatment to the Bilateral Contract Being Undischarged or Incomplete Discharged during the Bankruptcy Procedures——The 103rd Item of German Insolvency Statue

破产程序中如何对待未履行或未完全履行的双务合同是破产程序的重要问题。破产程序的开启对合同履行产生怎样的效力,德国司法判决和学说经过长期的发展逐渐达成共识。1999年1月生效的德国支付不能法将破产管理人的选择权清晰地写进第103条,明确了合同双方履行请求权在破产程序中的命运。

The treatment to the bilateral contract with failure of performance or incomplete performance is an important issue during during the bankruptcy procedures. After a long-term progressing, the consensus has been gradually achieved between German judicial decision and judicial doctrine, which is about how the operation of bankruptcy procedures influences the performance of the contract. The German Insolvency Statue, issued in January, 1999, has already clearly declared the right of choice of administrator in the 103rd item. It defines concretely the treatment to bilateral contract during the bankruptcy procedures.