On The Property Of The Bankrupt

This paper is mainly on the property of the bankrupt. Thispaper consists of the preface and the three parts of the body. Thepreface focuses on the introduction of the importance of thedefinition and discharge of the property of the bankrupt in themarket economy and legal practice. Market economy is legaleconomy and the main bodies of the market should compete witheach other fairly, thus the bankrupt law adjusting and whichadjusts and regulates the phenomenon of the survival of the fittestplays an important role in the legal system of the market economy.The way of defining the property of the bankrupt not only hassomething to do with the benefit of the bankrupt enterprise butalso serves as the premise of the amount of property the creditorcan get through legal process and it is also an important tache indetermining whether the bankrupt enterprise can get a fairliquidation. The first part is the general statement of the property of thebankrupt. What comes first is the theoretical definition of theproperty of the bankrupt. "The property of the bankrupt"is a corecategory of the bankrupt law which is widely used in common lawcountries while countries of the continental law system such asGermany and Japan call it "bankrupt consortium". Theoretically,the term "bankrupt consortium" is used in three perspectivesincluding legal consortium, present consortium and distributionconsortium. In the discussion of the same and different points ofthe "property of the bankrupt"and the "bankrupt consortium",different viewpoints such as "equivalence theory", "partialdifference theory"and "total difference theory"surge up. Thebankrupt law uses the concept of the "the property of thebankrupt" which refers to all the property of the bankruptdistributed to the bankrupted creditor according to the bankruptprocedure after the announcement of the bankruptcy. Second, the 59nature of the property of the bankrupt is discussed. In thedetermination of the nature of the property of the bankrupt, thepresent theory includes the theory of the object of right and thetheory of the subject of right. The theory of the object of rightholds that the property of the bankrupt is the object of right whichbelongs to the bankrupt while the theory of the subject of rightasserts that the property of the bankrupt inn itself is the subject ofright which is the subject like the artificial person of theconsortium, possessing the qualification of the subject of civil law.The theory of the subject of right develops into manysub-branches which mainly consists of the theory of quasiartificial person of the consortium, the special consortium theory,the artificial person theory, the acquiescent artificial person theory,the temporary artificial person theory and the theory ofconsortium without personality of the artificial person. Anothertheory holds that the ownership of the property of bankruptbelongs to the creditor or the trustee in bankruptcy (or theliquidators). Because the bankrupt law of our country only appliesto enterprise with the qualification of artificial person but not tonatural person, there is no urgent need to clarify the nature of theproperty of the bankrupt. Third, the feature of the property of thebankrupt is discussed. The property of the bankrupt must be theproperty which the bankrupt can dispose of independently; theproperty of bankrupt must be the property which can bedistributed according to the bankrupt procedure and it must bringswith it the nature of property right; the range of the course andtype of the property of the bankrupt has statutory nature; theproperty of bankrupt should be the property possessed or managedby the bankrupt at the time of the announcement of bankruptcy, orthe property newly attained by the bankrupt after theannouncement of the bankruptcy and before the termination of thebankrupt procedure, or the right of petition enjoyed by thebankrupt in f...