On Exemption Right In Bankruptcy

Exemption right is not initiated by bankruptcy law, but there is extension among the procedures of bankruptcy of right such as creditor's rights assured. Exemption right has the character that it is priority from the restrain of bankruptcy procedure. This characteristic makes the exemption righter and general bankrupt creditor forming a kind of antithesis relation. The law needs to carry on equilibrium to it. Main behavior of balance is to affirm the basic right of exemption right and exercise the regular concrete design. This text separately discusses the basic right, discharge order and exercise of exemption on the basis of analyzing the concept and character. The whole thesis is divided to four chapters. The abstract is as follows:Chapter one, the summary of exemption right. In this chapter, the author analyzes the choose of exemption and creditor's right by property guarantee. On the basis of introduction of scholar's different views, the author thinks that, no matter in view of angle of development of law, and in view of resource angle of existing theory, creditor's rights that property guarantee is not suitable for the foundation of discussing. Secondly, the author analyze the character of exemption and thinks that exemption right is a priority right against res and belongs to one kind of bankrupt creditor's rights. Finally, the author analyzes the value of exemption right and thinks it is the important means to protect the trade security and realize the equal of creditor's rights.Chapter two, the basic right of exemption right. Exemption right is not initiated by bankruptcy law, but has its basic rights. In this chapter, the author analyzes the concept of guarantee right on the bankruptcy law of our country at first. Although guarantee right is a legislative concept, it is lack of clear intension and epitaxy. On the view of system explanation, it should be limited to real right of pledge only. On the view of purpose explanation, it should be understood by broad sense, and bring special priority into the range of guarantee right. Secondly, the author separately discusses the concrete application of the basic right of mortgage, pledge of the right, lien, special priority, etc. and analyzes some dispute among the scholars. Finally, the author probes into two disputable rights --Movable property floating mortgage and deposit creditor's rights could be regarded as the basic right or not. The author regards that deposit creditor's rights can not be the basic right of the exemption right, but the movable property floating mortgage can be regarded as the basic right. Chapter three, the discharge gradation of exemption right. In this chapter, the author analyzes the discharge gradation between the exemption right and general creditor's right in bankruptcy. Though the exemption right is a priority in discharge and mainly regarding general bankrupt creditor's rights, but concrete application is not complicate. After analyzing three kinds of schemes suitable for choosing, the author regards limited choice doctrine is more desirable. Secondly, the author analyzes the discharge gradation between the exemption rights. Though they are the exemption rights, the discharge gradation can be different because of different basic right. Even they have the same basic rights, the discharge gradation can be different to some extent because different time of setting up. In general, the discharge gradation between the exemption rights are mainly influenced by the rules of civil and commercial law, and it is not be resolved by bankruptcy law. Finally, the author discusses the problem of discharge gradation between exemption right and employees credit. As a general bankruptcy creditor, they should be discharged after the exemption righter, but according to China's new bankruptcy law, the worker's debt before the promulgation of the Act takes precedence over the exemption righter in discharge. In my opinion, this although is quite upset, but it should be better understanding of the provisions to prevent the occurrence of new unfair, and the author has given his own solution.Chapter four, the exercise of exemption right. In this chapter, the author firstly analyzes the character of exercise of exemption right and agrees with the general theory and regards that repayment with a priority and the individual repayment are the most special things in the exercise of exemption right. Secondly, the author discusses the conditions for the exercise of exemption right and regards that it must also comply with contract law, property law, maritime law and other general provisions, as well as bankruptcy law for special provisions for the exercise of exemption right. Among them, the author focuses on the exemption right that may be revoked and regards that the debt there is no guarantee in original should be treated as exemption right after the creation of a security. It is not subject to the restrictions of period of one year. Again, the author discusses the issues whether the exemption righter claims his debt or not. On the basis of collate and assess to the views of scholars, I believe that, in order to smooth progress of the bankruptcy procedure and the protection of the bankrupt and the general bankruptcy creditors, the exemption righter should claim his debt. Finally, the author discusses the restrictions to the exemption righter in the reorganization proceedings and regards that as the principle, the exemption right in the reorganization proceedings shall suspend the exercise until the bankruptcy processes to be recovered.