On The Breakthrough Of Equality Of Creditor 's Rights

The Pari Pasu Principle, born in modern society, is one of the basic principles in Claims Law. It created a common equality order in Claims Law, and it is remarkably important to Claims Law, Civil Law, and even other fields of law.However,in practice, the common equality rule be created by The Pari Pasu Principle has demonstrated a number of deficiencies.Therefore, our country has to adjust the corresponding legal norms by seeking valid breakthrough of The Pari Pasu Principle for the sake of redeeming this disadvantage and preventing fierce social contradictions. This is the reason why the government developed different paths of the principle, and the aim is to find a subtle balance with the common equality rule.This paper focuses the breakthrough of the Pari Pasu Principle, in line with the three breakthrough paths in china’s practice, analyzes fundamental theories of each path, current situation and deficiencies, hoping to find the solution for specific questions, thus the "ought-to-be" path of the Pari Pasu Principle breakthrough.The paper is divided into five sections (except the introduction):Part one is about the Pari Pasu Principle in Claims Law and its breakthrough. The paper begins with the connotation, meaning, theoretical basis and features of the Pari Pasu Principle, follows with the significance and value of this principle, and concludes that this principle is irreplaceable in moderating the interior relations of Claims Law, ensuring the rationality of civil Security system and the health functioning of market transactions.Moreover, the paper studies the reasons as to why current legal system causes the breakthrough of Pari Pasu Principle. The author believes that it is an inevitable result, which is affected by the upheaval change of social background and legal environment, the change of Legal values, and predicaments of the olden civil law system. Finally, the paper analyzed the paths of breakthrough of Pari Pasu Principle.Part two describes how the priority of specific claim overpowers its breakthrough with the facilitation of legislation. In this part, the article analyzed the breakthrough path of the priority claims which was granted special effectiveness from the law, I consider that it seeks the balance between the commonly equality and special equality. At first, this paper defines the priority claims from the definition of priority claims, followed with the relations between the priority claims and the priority right. It considers the priority claim prioritized by law, however, it is different from the priority right in real right system. For example, the object of the basic claim, the degree to which its closeness with subject matter, whether it goes public or not, legislative ideas and other aspects all have essential differences with each other. Moreover, the article compares and contrasts the current priority claims system in Germany and Japan, thus provides reference for the legislation of China. On the analysis of the present situation and deficiencies of the priority claims system in our country, The author argues that our country should not simply copy other countries’ legislation precedent, rather, we need to focus on the present situation and the practical demand of our country’s system in order to establish the theoretical basis and standardized system of our own priority claims, adopt civil law for the top-level design, and utilize special law for specific provision.The third part covers how the real estate claims breaks its equality because of the advance notice registration of the Pari Pasu Principle. The paper deems that the advance notice registration system is a balance facilitated by legislation amongst different parties for the sake of strengthening the security of real estate transaction. The paper analyzes the nature of the advance notice registration system, claims that the advance notice registration is a fail-safe method of real right change claims, hence the claims registered via the advance notice registration acquire the special law force. Thereafter, the paper further delves in the validity of the advance notice registration. Not the least, the paper studies the advance notice registration system in Germany, Japan, Taiwan, and Mainland China; using legislation advantages in Germany and Japan, and Taiwan to perfect our system, and as a result concluding that we should refine and implement the operational standard of our notice registration system, clarify the relationship between the registration of administrative management system and the advance notice registration system.Section four is about how multiple sales and purchase contracts violate the treaty of equality because of judicial interpretation of the Pari Pasu Principle. In this part, we study the performance sequence of multiple sales and purchase contracts established by Article 9 and 10 in Interpretation of the Supreme People’s Court on Issues Concerning the Application of Law in the Trial of Cases of Disputes over Sales and Purchase Contracts. Due to the fact that this judicial interpretation just sorted the performance sequence of contracts rather than give the claims particular law power, henceforth it is distinctive from the above two paths, it realizes the equality breakthrough via the Pari Pasu Principle. The paper first discusses the concept and scope of multiple sales and purchase, and analyzes how it has become validated in terms of economical and legislative perspectives. Then the paper discusses the performance sequence of general and special movable property produced by Article 9 and 10, which break through the Pari Pasu principle. Finally, on the basis of analyzing the sequence of the multiple sales and purchase of movable property, we call into two questions regarding whether the performance sequence of general claims will cause remarkable destructions to the Pari Pasu principle, or whether the rules are workable. Therefore, we think the judicial interpretation should not be so eager in exerting intervention in the field of law, but rather, it needs to reveal the general claims in its true colors. It should regulate utilizing civil law, hence preventing illegal conducts.Part five, the conclusion. This part aims to discuss the specific breakthrough paths, then provides the "ought-to-be" path of the breakthrough of the Pari Pasu principle, for consolidating the Pari Pasu principle system and finding the proper breakthrough path.Due to the important position and great influence of the commonly equality rule build by the Pari Pasu principle of claims, before the commonly equality rule of the claims has not thoroughly lose its control ability, this paper argues that breakthrough the commonly equality rule of the claims just can be the exception, and the exception must have "sufficient and justified reasons". The breakthrough method should not be used the way just for "some special claims", which will threaten the whole claims system. So only have "sufficient and reasonable reason"and adopt rational manner, it is likely to conform to the "ought-to-be" path of the breakthrough of the Pari Pasu principle.