On Discharge Gradation In Bankruptcy

This thesis studies the discharge gradation in bankruptcy. This problem embodies the choice of value in benefit balance of bankruptcy legal system of one country. This thesis mostly studies the value basic, demonstration rule, necessary gradation of discharge gradation in bankruptcy and the shortages and consummations about the rules of discharge gradation in bankruptcy in our new law of enterprise bankruptcy. The whole thesis is divided to four chapters. The abstract is as follows:Chapter one, the value basic of discharge gradation in bankruptcy. In this chapter, the author introduces the three models of interest protection in bankruptcy law at first and considers that although the bankruptcy law has experienced the protection transformation from the creditor's benefit to debtor's benefit and again to the social benefit, but this transformation correlating with age background only is the transformation in whole sense. Its concrete embody is the formation or transformation of some system or ism in bankruptcy law. These systems or isms don't relate to the discharge gradation in bankruptcy liquidation. Thereby, discharge gradation in bankruptcy only deals with the benefit balance between creditors and takes equity of its value basic. We can see it from both the necessity of bankruptcy system and the general cognition of scholars.Chapter two, the demonstration rules of discharge gradation in bankruptcy. In this chapter, the author confirms the equity's intension is equality at first after introducing the definition of equity of scholars. This confirmation can avoid the superposition with other values and reduce the disputes. Secondly, the author discusses the division of strong equality and weak equality basing on the socialization of private law. The socialization of private law brings the modern civil law. The equality principle in modern civil law emphasizes the particularly on the strong equality and at the same time much more thinks much of the weak equality. It means both the equal treatment and means the different treatment----the same circs should be treated similarly and the different circs should be treated differently. Finally, the author thinks that the equality in bankruptcy discharge gradation requests the different arrangement of creditor's right should give reasons. Although there are two different kinds of equality in modern civil law, the strong equality is also the basic of civil law. If discusser regard that some one creditor's right should be discharged taking precedence of other creditor's right, he ought to give abundant reasons and on the contrary if discusser regard that some one creditor's right should be discharged not taking precedence of other creditor's right, he can only disproves the assentient's reasons.Chapter three, the proper selection of discharge gradation in bankruptcy. In this chapter, the author discusses some disputed discharge gradation of creditor's right taking the discussions in our country as the background and basing on the discussion in the chapter above in order to form the common sense. Firstly, the author regards that assured creditor's right should be discharged preceding to labor creditor's right and this is the necessary result of security interest's precedence. Secondly, basing on the introducing of different legal attitude about discharge gradation of the labor creditor's right, the author regards that it is the necessity of labourer's subsistence, so it should be discharged. But this ought to ensure the labourer's basic life as necessity. Hereby, we should limit the producing period of labor creditor's right and the labor creditor's right producing before some period of time should be treated as common creditor's right. Again, the author regards that the creditor's right of tort damage compensation should be the precedence creditor's right basing on the introducing the two positive and negative opinions. Because the bankruptcy of commercial party not only influence the other commercial parties but also the consumers and that under the circs of superposition of tort obligation and contract obligation it is not different on the cost of discrimination. Finally, the author regards that tax creditor's right should be discharged as common creditor's right. This is mainly due to that the tax's commonweal is only a possibility and can just translate into reality after confirming the scope of influence and that the common creditor's right will come to harm because the tax is discharged with precedence. So, it is untenable to endow the tax with priority taking the uncertain facts as reasons.Chapter four, the lack and amelioration advice of the regulation of discharge gradation in bankruptcy in our country. In this chapter, the author firstly concludes the regulations of discharge gradation in bankruptcy in our new enterprise bankruptcy law and regards that the regulation exists four shortages and discusses the problem of special priority and inferior creditor's right. Whereas the security interest can not contain the priority, we should definitely regulate its gradation under the circs that there exist in special priority in our country. Otherwise, whereas the inferior creditor's right is different from the excluded creditor's right, some creditor's right should be treated as interior creditor's right but not the excluded creditor's right. Basing on this, the author analyses the concrete types of the excluded creditor's right.