Research On The Wage Priority

The wage priority, as a necessity for the advancement of social policies, has already been adopted by many countries in the world. In order to protect the interest of employee's wage, there are also regulations about the wage priority in the Bankruptcy Law and Civil Procedure Law in China. However, the regulations about wage priority in China are too simple, and therefore causes a lot of problems in practical use. The paper aims at the default of wage priority in legislation, analyzes the character of the wage priority, its suitable background and functions, and results in the primary position of the wage priority in the discharge order. At the same time, due to the consideration of interest balance, some necessary limitations are made for wage priority. The purpose of the paper is to give people a clear recognition of the wage priority through the research on it, eliminate the dispute over it, and realize the creditor's rights on wages of employees under the condition of caring for the interests of both sides, so as to protect the benefits of the laborers, and promote the stability and harmony of the society. The paper consists of three parts.The first part of the paper is the illustration and analysis of some general theoretical problems concerning the wage priority. The part can be further divided into two sections. One is to explain the wage priority. Through the analysis of wage right and priority right, which are close related to wage priority, the author sums up the definition, characteristics of the wage priority, and describes the legislation value of it. Based on the consideration of the convenience of research and clarity of illustration, the wage priority in the paper is defined as common priority, and it goes directly under the regulation of the law. When there are debts on both unpaid wages of laborers and the other aspects, the debt of the laborers comes first. Wage priority has the characteristics of priority, legal, affiliation and sociality, as well as unconventional public recognition. Because of the equality of creditor's rights, once given the priority, the creditor must have some kind of special reason. The reason for wage priority lies in two aspects: first, to protect the wages of workers is a necessity of the advancement of social policies; second, to protect the wages of workers is because of the relation between wages and goods; third, to protect the wages of workers is due to the weak position of them; fourth, to protect the wages of workers is due to the shortage of relief to worker's creditor's rights. The other is to analyze the characteristics of the wage priority which arouses many disputes: firstly, analyze whether wage priority is owner's right or creditor's right. Because the wage priority has a similar character with security interest, most scholars consider it as a kind of owner's right. The author thinks it is not through analysis of the characteristics of the wage priority and security interest. And through the basic difference between owner's right and creditor's right whether the realization of the right depends on the other's behavior, the author analyze the wage priority, concludes that the wage priority only strengthens the law power of creditor's right on wages, its characteristics still didn't leave the right itself, therefore it belongs to creditor's right. Secondly, analyze whether the wage priority right is a kind of right or power. Through the analysis of whether the wage priority has independent characteristics, we can conclude that the creditor's right on wages gets its priority out of the regulation of laws. The wage priority doesn't have same position with creditor's rights on wages, it is only a outer form for creditor's rights on wages. The wage priority is not a right, it is a power. Thirdly, analyze which power does the wage priority right belong to in creditor's rights. The author thinks that the wage priority is a kind of relief power through analysis about different powers lies in creditor's rights theoretically.The second part illustrates the realization of the wage priority through condition, procedure and drop down order. The condition for the realization lies in the adaptation of the wage priority, it is the precondition for the use of the wage priority: the procedure of the realization of the wage priority right is about whether it can be realized, and how to realize it, is a security to the realization of the wage priority. The drop down order is about the extent of the realization of the wage priority, it is the key point of the realization of the wage priority right. In this part, according to the regulations about the pay order of the wage priority abroad, together with our domestic condition, the author make analysis about the wage priority in China and other relevant powers. Most importantly, the author analyzes the most disputable problem of the powers of the wage priority and security interests. The author analyzes the two in the aspect of law and law economy. In the aspect of law, through the value and power of law, the author thinks the power of the wage priority outweighs the security interests. In the aspect of law economy, through analysis of the wage priority gets its yield before security interests, the author concludes that the yield is more than its cost. And above all, we can know the power of the wage priority outweigh the security interests.The last part is the legislation suggestions based on the above illustration. First, the author mentions the shortage of the wage priority system. Second, the author gives some suggestions according to the drawbacks in current China about the wage priority in legislation. It lies in the following aspects: 1. put the wage priority in the law of labor. 2. promote the drop down order of wage priority. In the drop down order of bankruptcy, we should put the creditor's rights on wage in the first place before security interests and tax interests, and at the same time, concerning the damage it will do the security interests and tax interests, we make necessary limitations. First, we make limits about the amount of creditor's rights on wages, and suggest to make a regulation in the new Bankruptcy Law of Enterprises. The regulation shows that the debtor can only owe the workers basic wage, and the highest amount of the creditor's rights on wage can be three times the basic wage of workers. Second, there are also limitations about the time of the creditor's rights on wages. The author suggests that according to the practice of bankruptcy in China, we'd better limit the time to the wage of one year before the bankruptcy of the enterprise. Third, the realization of the creditor's right on wages also need to be confined. I suggest that we can refer to the ways Japan adopted. The creditors first get paid by the possessions of the debtor except his real property. If this can not be enough, the debtor's property without security goes to pay. If the above still can not be enough to pay for the wage debt, the security interests make the debtor use his other properties to pay. Third, the author suggest we should build the regulation for the registration of the creditor's rights. Based on the damage that wage priority may bring to the safety of trade, it is suggested to build a checking system in the Business Bureau for the workers'wages in enterprises, and put up notice on time to show the outstanding payment. This can assure the safety of trade, and at the same time can avoid the damage brought about by the enterprise's bankruptcy by way of giving false information or make up wage creditor's rights at a result of the fact that the wage priority outweigh the security interests.