On The Range Of The Bankrupt Property

The bankrupt legal system is the important component of legal system of the society of goods economics and plays an important guarantee role on operation and development of commodity economy. And the bankrupt property is an extremely important problem in bankruptcy law. The definition of the bankrupt property's range concerns the interests of each side in bankrupt relation directly, influences the going of procedure of bankruptcy, and determines the end of the procedure of bankruptcy at the same time. So, the study on bankrupt property is very essential.What is called bankrupt property refers to the aggregate property that all property and property right of the debtor form when the procedure of bankruptcy begins, and is usually known as the bankrupt financial group in the mainland law. In theory, bankrupt financial group is used in three meaning: legal financial group, existing financial group and the distributing financial group. The division in these three kinds of meanings has certain profit to lead accurate definition of the range of the bankrupt financial group, accord with people's logical thinking order, have certain directive significance in the procedure of the bankrupt practice. Through analyzing the similarities and differences of bankrupt property and bankrupt financial group, our country should continue using this concept of the bankrupt property, needn't transplant the concept of the bankrupt financial group. The bankrupt property possesses the characteristics of the following: The bankrupt property is the existing property with the purpose of discharging creditor's rights; The bankrupt property must be the property that the bankrupt has or has the right to deal with; The property the bankrupt caretaker controlled and mastered directly; The bankrupt property is the property in the range that the law expressed definitely; The bankrupt property is the property that can be arrested and enforced; The bankrupt property has locality. About property of bankrupt property, there are the subject say of right and the object say of right. The subject say of right can't justify oneself in theory in legal system of our country, and is valueless at all in practice, the properties of the bankrupt property of the legal provisions of our country are the object property. Reviewing the legislative principle about bankrupt property of countries all over the world, there are mainly two kinds, in view of time standard, have "swelled doctrine "," fixed doctrine ", as to land standard, there are " possession doctrine " and " the popularizing doctrine ". Among them various theories exist each well and badly. The legislative principle of the bankrupt property of our country has adopted " swelled doctrine "on the time standard, with further completion of the bankruptcy law and fundamental improving of the implementing environment of our country, our country should consider adopting the eclecticism principle " with the fair protecting interests of each party "; On the region standard, bankrupt law of our country has not made the concrete regulation, but our country should maintain a relatively open attitude to this question and abandon the strict possession doctrine, adopt the more realistic and limited popularization doctrine. Article 28 of bankruptcy law (tried)" of our country has done the general regulation to the concrete range of bankrupt property of our country, but this clause has the question of inaccurate expression of characters and confusion on logic and content. And article 30 of our country new "bankruptcy law" has protected emphatically the creditor's interests in the regulation of the concrete range of the bankrupt property with the accurate definition of the range of bankrupt property from the content, has remedied the careless omission on the original regulation, have reached the unity on logic and content. In the asserting of some concrete bankrupt property, the transformation of the property ownership of trust is only for the convenience of managing and dealing with, but not real transformation of ownership, so the trust property should not belong to the trustee's bankrupt property. Although this kind of view counters to the traditional theory of ownership in the continent law, but this kind of understanding has prevented the debtor i.e. bankrupt from reducing the possibility of the positive property maliciously, help to protect the creditor's legitimate rights and interests. Property in collateral already should belong to bankrupt property and guarantee right people have priority right in repaying in general cases, whether allocated state-run land is bankrupt property or not can't be treated as the same, and should look at different situation and distinguish them and protect interests of creditors emphatically.