The Research Of The Claims In Bankruptcy And The Order Of Their Satisfaction

The bankrupt law is one of the basic legal rules of market-oriented economy, and that whether the legal system of bankrupt of a country is perfect or not is an important symbol of the maturity of it's market-oriented economy. The Enterprise Bankruptcy Act of the People's Republic of China which has taken many people more than a decade to enact with hard work and is embodying their hopes much more satisfies the needs of the market-oriented economy by learning more legislation experiences from foreign countries . However, which is yet unsatisfying is that there are many defects in the issues of the claims in bankruptcy and the order of their satisfaction. And the order of the satisfaction of the claims in bankruptcy is a most sensitive issue with important realistic significances which involves the personal interests of every creditors in bankruptcy and will effect the behavior models of the people in markets. Therefore, the writer think it is necessary and there are much to do to perfect the institutions of the EBA of the PRC and try to do some researches on it in this paper.The writer classifies and analyzes the claims in bankruptcy starting from the definition of the claims in bankruptcy and by quoting, comparing, illustrating and logical reasoning. Then the write introduces the legislation of the satisfaction order of the claims in bankruptcy and analyzes the defects of it and produces her personal advises about the perfection of the institutions of the satisfaction order of the claims in bankruptcy.The paper is divided into five parts.Part One, the Summarization of the Claims in Bankruptcy. The writer mainly introduces the definitions of the claims in bankruptcy in bankrupt laws of other countries and regions, in old and new Chinese bankrupt laws and in academic circles, produces her own opinion of the conception of the claims in bankruptcy as the foundation of the following parts of the paper in this part.Part Two, the Classification of the Claims in Bankruptcy. In this part, the writer classifies the claims against the bankrupt into seven kinds, including the secured claims, claims of laborers, preferred claims provided by special laws, government claims, claims for tort damages, common claims and other claims. As to the secured claims, the writer emphasizes on the application of the earnest rule. As to the claims of laborers, the writer emphasizes on the nature of the social security premium owed by the bankrupt. As to the claims for tort damages , the writer emphasizes on the differences between the claims for tort damages and the contractual claims. As to the other claims, the writer emphasizes on the analysis of the postpositive claims other than the exclusive claims. In this part, the concludes that the earnest rule should be applicable and the secured claims should be satisfied in priority, the social security premium owed by the bankrupt should belong to the claims of laborers rather than common claims, the claims for tort damages should be independent of common claims and should be satisfied in priority, the correlative claims of the bankrupt should be satisfied after common claims.Part Three, the Analysis of the existing legislation on the satisfaction order in bankruptcy of China. In this part, the writer classifies the satisfaction order of claims in bankruptcy into three kinds: the satisfaction order of the claims in policy-based bankruptcy, in the bankruptcy of enterprises with specially provided claims of laborers based on the old Bankruptcy Act and in the common bankruptcy. The writer introduces the relevant problems in the three kinds of bankruptcies and mainly analyzes the issues in policy-based bankruptcy and in the bankruptcy of enterprises with specially provided claims of laborers based on the old Bankruptcy Act. Further, the writer analyzes the existing legislation on the satisfaction order of claims in bankruptcy and points out the defects of it as following: the existence of the legal vacancy ; the unreasonable provisions about the satisfaction order of claims of laborers; the unreasonable provisions about the satisfaction order of the revenue claims; the over-limited scope of the claims in bankruptcy and the violation of the constitutional principle of "All people are equal before the law"; lack of the provisions about the satisfaction order between the secured claims ,the expenses of bankruptcy and debts for common benefits, etc. The writer thinks that the claims of laborers should be treated differently and the claims for wages in reasonable period should be satisfied prior to the secured claims and the other claims of laborers should be satisfied as common claims; it's reasonable that the revenue claims should be satisfied in priority; the part of the bankruptcy expenses and debts for common benefits which is occurred for the benefits of the secured creditors only should be satisfied prior to the secured claims and the other part of them should be satisfied after the secured claims with common properties of the bankrupt.Part Four, the Advises about the Perfection of the Satisfaction Order of the Claims in Bankruptcy in China.In this part, for the first, the writer analyzes the principle of the satisfaction order of the claims in bankruptcy, and think that the fairness principle, the good faith principle, the maintenance of the order of the transactions principle should be stick to as the bases of the provisions of the satisfaction order of the claims in bankruptcy. Further, the writer produces her plans of the perfection of the provisions of the satisfaction order of the claims in bankruptcy in Chinese bankrupt law and she thinks that they can be complemented with legislations and judicial explanations and should be matched with other measures. The legislations and judicial explanations should include the provisions of priorities, the different treatments to laborer claims, the right provided to the common creditors to inspect the amounts of laborers claims, the limitations to the provided priorities, the satisfaction order of the bankruptcy expenses and debts for common benefits. The matching measures should include the institutions to secure the owed wages, the enhanced strength of implement of relevant administrative law, the measures to increase the opportunities of jobs, etc. In the end, the writer thinks that the satisfaction order of the claims in bankruptcy should be ranked as the follow: the laborer claims for wages of 3 to 6 months; the secured claims; priorities provided by laws besides the Bankruptcy Act of the PRC; the common claims; the postpositive claims in bankruptcy.Part Five, the Conclusions. The writer summarizes and re-declares her opinions.