How To Restrict And Protect The Security Interest In U.S Bankruptcy Code

Besides the introduction and epilogue, the thesis can be divided into five parts:The first part is about how to define the "security interest". "Security interest" should be widely used as a imported language means the creditor's secured claim right. In this paper, it may be used as both "security interest" and "secured claim", which depend on the context of words. Compared with America, China has different legal tradition, legal system and language environment. In our country there have been three different translations about the "security interest", even though the writer consider that the concept of "real right for security" in Continental Legal System should be better. However, the concept of "security interests" may be used more widely, as is well known, several new secure methods has also been created by the American Uniform Commercial Code, and the Internal Revenue Code and the Bankruptcy Code and added into the concept of "security interest".The second part introduce secured claims process in bankruptcy in detail. Not every claims in the bankruptcy procedure can be identified as the bankruptcy claims. However, the definition of bankruptcy claims in the Bankruptcy Code is obviously quite broad, the most basic principle is "right to payment". It is notable that the principle is applicable for both secured and unsecured claims.For all the creditor's rights, the claims process is different in bankruptcy and non-bankruptcy. The claims process include five stages:claim filed, disputed, hearing, estimated and distribute. Finally, all the claims will be waited for the distribution of the bankruptcy property, which known as a game between the different parts. Because of secured interest in collateral, the creditor can be discharged by the sale income for collateral which has been removed the reasonable distribution fee. Therefore, most secured claim can be discharged entirely. After that, the unsecured creditor can shared proportional with the left estate property in accordance with their own priority. The third part is about another important bankruptcy mode. The essence of "Reorganization" is to require creditors to make a concession to debtor, so as to make the enterprise regeneration. Compared with the liquidation, in reorganization, the creditors are inevitably give debtor a grace period, and the debtor makes "reorganization plan" to promise to pay back. Nonetheless, security interest still can be discharge, maybe in the future. But undoubtedly the existence of security interests is the best guarantee. Instead, unsecured claim do not have this good luck, and just not less than liquidation.The fourth part is about one of the most special bankruptcy instrument-"automatic stay". Once the bankruptcy filed, everything against the property-of the debtor should be immediately stopped. This is the automatic stay. Compared with unsecured claim, secured claim has incomparable advantage. The judicial relief form automatic stay in the Bankruptcy code may be just set up for the security interest. Obviously, the most seriously impairment made by the automatic stay is to delay in execution of the security interests.