The Rearch Of Exemption Right

Exemption right is the creditors who have the real right guarantee in their claims ,and enjoyed the right of Priority for the bankrupt's specific property. Exemption right initially arose in Germany, then progressivly development to other countries. Because of different understanding of exemption right, the concept of exemption right in different country is not the same. China has used two concept to explain exemption right, in the first bankruptcy law known as old bankruptcy law, it is"the credit has security interests"; in the existing bankruptcy law known as new bankruptcy law, it is"the priority of security right". Although"the priority of security right"does some amendments on the defects of connotation and denotation of"the credit has security interests", still can not reflects the scope and the features of exemption right, does not have the generalty and the richess of content in the concept of exemption right as well. So China's future insolvency legislation should be adopted the"exemption right"concept.As a right on the property of the bankrupt, it is based on the rights which founded before a bankruptcy petition. The basic right maily refers to the rights like mortgage,ledge, although the exertion of the exemption right is independent of the bankruptcy procedure principlly, it is still constrained by the bankruptcy procedure. For the exemption right based on right like pledge, the establishment of real right is decided by the tranference of target property's possession, the loss of target property will lead to the elimination of exemption right. But for the real rights like mortgage, which do not need the tranference of target property's possession and have the feature of depending on the value, not on the physical property, after the loss of target property, the real rights will continue to exist on the subsitute or repatations, so the loss of target property has no influence for the duration of exemption right which based on this kind of real right. The exemption right's owner has the right to disregard the bankruptcy procedure as a first-priority claim on the banjrupt's specific property, but it does not change the nature of specific property, there is no difference between this specific property and bankrupt's other properties. So exemption right's target property belongs to the bankrupt's properties. According to the different guarantor, the relation between exemption right and credit devided into two situations: in addition to creditor and debtor, when the guarantor is a third person, exemption right is not bankrupt credit; when the guarantor is the creditor himself, exemption right is bankrupt credit.The scope of the basic rights of exemption right decides what rights can constitute a exemption right, so the difination of the basic rights is very important for the protection of exemption right's owner. On the ground of national and international regulation of exemption right in bankrupcy law, the basic rights of exemption right is the civil law real right. According to the different lregulation and the different nature, it can be divided into typical real right and non-typical real right. The former are mainly mortgage, pledge, lien. The latter refers to special priority, ownership hold.Typical real rights includes mortgage, pledge, lien. The mortgage can be divided into normal mortgage and special mortgage, the latter includes the maximum-limit mortgage, legal mortgage, the consortium unsecured mortgage, floating mortgage. No matter normal mortgage or special mortgage, no matter mortgagep or ledge, as part of typical real rights, because they can meet the basic characteristics of exemption right, so they are the basic rights of exemption right. Ther are different regulations between countries on lien, some countries have the regulations that only commercial lien can constitute exemption right. Our law considers the lien as a kind of real rights, so when the lien meet the elements for entrying into force, it can constitute a exemption right. Guarantee is based on the credit of the guarantor, it does not give creditor the right of priority for the bankrupt's specific property, so guarantee can not be the the basic right of exemption right. With regard to the advance deposit, if it has the pure currency as collateral, it can not constitute a exemption right; if it has non-specific which can turn into currency as collateral, it can constitute a exemption right.Becides typical real rights, non-typical real right like special priority, ownership hold, relinquish hypothec mighe be the basic rights of exemption right. The special priority has the general atttibutes of real right, it belongs to the legal real right. What"ownership hold"retains is not the ownership, but the expectation and guarantee of paying the balance. Special priority and ownership hold are all guaranted by bankrupt's specific property, so they can be the basic right of exemption right. In the relinquish hypothec, when the debt is not paying off accrding to the terms of the guarantee agreement, the secured party can have the specific property directivly; person who set up relinquish hypothec also has the right of get the ownershio back after paying-off, and has the right of retaining the ownership before pay off period. So when the person who set up relinquish hypothec going bankrupt, the secured party can have the specific property according to the"getting-back"right; when the secured party going bankrupt, the person who set up relinquish hypothec can get the ownershio back after paying-off. Because the"getting-back"right which the creditor owns is based on the ownership of the specific property, therfore relinquish hypothec is not going to be the basic right of exemption right.On the beginning of the bankrupt law, it is primarily debt-repayment and enterprise-bankrupcy-liquidation.With the commodity economy development, the bankrupt law also progressively changes from pure-protection of the interests of the creditors to accommodate the interests of creditors and the debtor, paying attention to enterprises renewable, paying attention to social fairness. The new bankruptcy law draws on the development trend of international bankruptcy legislation, becides the protection of the interests of the creditors, pay more attention to safeguarding the interests of the debtor and the realization of social fairness and justice. On the issue about protection of exemption right, the new bankruptcy law has taken a mode of combination of protection and restriction. Credit reporting is that the creditor or his agent should apply his credit to court or special organ, submitts information and corresponding evidence about the credit in the legal period of bankruptcy procedure. On the question of credit reporting, there is differencebetween countries, China implements a"should be declared"system. In the process of exemption right–determining, the creditors'conference plays a very important role, the creditors'conference has to review the amount and efficacy of the credit, and passes relevant resolution. But it is worth noting that,according to article 64, paragraph 1 of the new bankrupt law:"the resolution of creditors'conference must passed by over 50% of the creditors who have the voting right and the creditor vote for the resolution must have the credit on behalf of 50% or over 50% of the credit which have no guarantee."This double-majority standards is unfair restriction for exemption right, goes against the protection of the interests of creditor. The exemption right constituted by the real rights of the same nature, their paying-off order depands on the time of contract registration or time of entrying into force; among the exemption right based on different real rights, special priority usually has priority over other real rights, the paying-off order of the other real rights is depended on the << Security Law >> and other relevant laws, and judicial interpretation of the rules'competing. The paying-off scope of exemption right is decided by the guarantee coverage of the basic right, its main fulfillment forms are auction and other public forms. The bankrupt preventionsystem is composed of reconciliation procedure and re-engineering procedure. As the recognition and implementation of real rights in bankruptcy procedure, enjoyed the right of priority for the bankrupt's specific property independent of bankruptcy procedure, but due to the need of enterprises reconstruction, the bankrupt prevention system especially re-engineering procedure needs to retain the property of the bankrupt and limit credit settlement, restricts the exertion of exemption right, so the relation between exemption right and the bankrupt prevention system is restriction and coordination.