On Priority In The Bankruptcy Law And Its Perfect

The priority right under the bankruptcy law, is a concept with a very broad meaning. It, on the one hand, can refer to the priority right in connection with creditor 's right arising out of the ordinary bankruptcy, and on the other hand, it can refer to the priority right arising out of all creditors' rights. It can also refer to the priority right to accept the repayment that is not bound by the bankruptcy procedure.1. Analysis of the priority rightInitially, the legal system concerning the priority right stems from the Roman law. The priority right is a civil right, which is created by the operation of law or in accordance with the agreement by parties. Under the priority right, when several civil rights with different characteristics are in conflict, one holder of the civil right has the priority right to realize civil right over the other holders. Essentially, the creationof the priority right is to solve the order of discharging debts. There are specific chapters on the priority right in both French Civil Code and Japanese Civil Code.The priority right is a special property right created by the civil law and other specific laws and it especially has the characteristics of secured property right. Even if the priority right arises out of the special type of creditors' right, it still has the characteristics of property right. This is so-called the transfer of the creditor's right to the property right. The creation and development of the priority right indicate that there is the objective basis on which a country creates it. That is, there are social relations that need to be realized and protected. And further, the corresponding social relations become the legislative grounds of the priority right. The legislative grounds of the priority right, which are based on the social circumstances, must be understood from the social circumstances.2. Analysis of the Priority Right under Our Country's Existing Bankruptcy Laws(1) Priority Right Concerning Bankruptcy Expenses, Debts with Mutual Interests, Employees' Cost of Living and Medical Expenses during LiquidationUnder Article 34 of the and the Supreme People's Court's , the priority right concerning bankruptcy expenses, debts with mutual interests, employees' cost of living and medical expenses during liquidation are prioritized. (Generally, the cost of living and medical expenses are relatively low)(2) Priority Right Concerning "Creditors' Right Secured by the Property" Article 32 of the fails to adopt theconcept of "exemption " under the continental legal system. Instead, it uses the " creditors' right secured by the property" following English common law. Nonetheless, the theory of the bankruptcy law was deeply influenced by the continental law, and the concept of "exemption" is generally accepted and used.. The exemption right is a specific right under the bankruptcy law and it distinguishes from several other rights on degrees.(3) Article 33 of the is a provision concerning offsetting right. Just like exemption right, essentially, the offsetting right is a type of priority right to accept the repayment. The creation of the offsetting right is to fairly protect the interest of the creditors, and in the meantime by offsetting, to terminate the credit-debt relationship between the creditor and insolvent person. It can also avoid the deterioration of the credit-debt relationship, and promptly put the bankruptcy liquidation to an end.(4) Under Paragraph 2, Article 37 of the , the employee's wage, labor insurance premium and taxes are prioritized compared to common creditors' rights during the procedure of the bankruptcy liquidation.3. Other Creditors' Rights that should be prioritized under our country'sbankruptcy law(1) The scope...