On The Exclusion Of Bankruptcy Proceedings

Bankruptcy law is a set of procedural law and substantive law, public law and private lawand the integration of law. In the commodity economy, the debtor bankrupt is a normalphenomenon, but it would have a significant impact to the benefit of creditors, how fair safeguardthe interests of the creditors and debtors, the generation of bankruptcy law is the key to solve thisproblem. In a complete sense of the bankruptcy law is voted by December2,1986of the law ofthe People’s Republic of China on enterprise bankruptcy law (trial), but because of the too manyproblems in the implementation process, implementation of the modified21years later, in2007promulgated the enterprise bankruptcy law of the People’s Republic of China.This paper will discuss a kind of special system in the bankruptcy law, named the Exemptionright. The concept of Exemption right has been from the past creditors first to both creditors andsocial public interests, pay attention to the fair. While the new "bankruptcy law" on the basis ofthe old method have already made larger changes to the system, but, because our country theestablishment of the system of Exemption right relative to foreign, started relatively late, the studyof the system of Exemption right is not enough profound, the judicial practice experience isinsufficient, and there are many legal problems in th system of Exemption right.Research thesystem of Exemption right, to improve our bankruptcy legislation, maintaining social stability,promote economic development has the vital significance.This dissertation talks about Exemption right in five sections.The first part, the historical development of bankruptcy law. It Introduces the developingcourse of national bankruptcy law, the historical background of the bankruptcy code have apreliminary understanding, and emphatically introduces the creation of the bankruptcy law inChina, although the new "bankruptcy law" of our country economic construction in China havemade great contribution, still exist many problems, this requires legislators to strengthen thetheory study of bankruptcy law in our country and the accumulation of practice experience, keepimproving.The second part, the definition of Exemption right. It introduces the concept of Exemptionright. It is held that1、our country should use the concept of Exemption right;2、The legal natureof Exemption right, emphasizing the Exemption right is to the real right rather than on humanrights;3、The value of Exemption right, it can maximize the maintenance of the interests of thecreditors and protect the transaction security.The third part, Exemption right is relationship with related concepts, including credit ofbankruptcy and bankruptcy procedure. It is held that1、Exemption right belongs to credit of bankruptcy;2、The exertion of Exemption right is not limited by bankruptcy procedure inprinciple, but closely related to it.The fourth part, the basic rights of Exemption right. This paper argues that the mortgage,pledge, lien and other typical real rights for security and special priority, guarantee rights and titleretention of typical real rights for security can become the Exemption right ’s basic rights. Itargues that mortgage, pledge, lien and special priority, guarantee rights can be the basic right ofthe Exemption right, while guarantee, deposit and general priority cannot be the basic right of theExemption right.The fifth part, the exertion and realization of Exemption right. Firstly, Exemption right’sowner should declare creditor’s right; secondly, it expounds the determination of Exemption right;thirdly, Focusing on the analysis of the floating mortgage guarantee as well as the priority priority;finally, it illustrates the limitation in bankruptcy reorganization and bankruptcy reconciliation andhow to perfect the restrictions.