Study Of The Bankruptcy Estate Law

Bankruptcy law is an important part of legal system of market economy, and the system of bankruptcy estate is the core of bankruptcy law. Many other systems of bankruptcy law are centered on bankruptcy estate. The basic value of bankruptcy law is to generally distribute bankruptcy estate equally among creditors, so bankruptcy estate is a deciding factor on the payment interests of the creditors. This paper tries to elaborate the basic theory of bankruptcy estate and discuss some related problems about China's bankruptcy estate legal system.Part 1, the general theory of bankruptcy estate system, which tries to:Firstly, compare Bankruptcy Estate and Bankruptcy property in grammar and legal character, and show the reasons to choose Bankruptcy Estate: its long history in China, the code law tradition in China and the character of this terminology itself.Secondly, elaborate three categories of bankruptcy estate: present estate, legal estate and distribution estate. Then describe the evolving process of bankruptcy estate: form present estate to legal estate, and from legal estate to distribution estate.Thirdly, delve into the reasons of the theory of object of right about the legal character of bankruptcy estate. Since bankruptcy estate doesn't belong to the bankrupt, the creditors and the bankruptcy administrator, does bankruptcy estate hang in the air? No. We can solve this problem by objectlizing itself with the help from the theory of estate legal person. Then suggest building China's system of bankruptcy estate on the theory of object of right.Part 2, the theory of bankruptcy estate constitution,\vhich tries to:Firstly, confine bankruptcy estate in time and space. On the time confinement, review the confrontation of fixationism and expansionism. Fixationism cares more about debtor's surving and development, while expansionism cares more about creditor's interests. Then suggest choosing expansionism in our new bankruptcy legislation to show more cares about creditor's interests.Secondly, expound the components of bankruptcy estate: 1) must be theproperty of the bankrupt; 2)must be the property of the bankrupt when declaring bankruptcy, or the right of claim to be exercised by the bankrupt in the future, or the property obtained by the bankmpt from declaration of bankruptcy to the termination of the bankruptcy procedure; 3)must be the property at home and property that can be taken back from abroad; 4)must be the right not belonging to the bankrupt self and the property forbidden to attach.In the 4th one, state the theory of free property -the exception of bankruptcy estate.Part 3, based on the theory above,reviewing our current system of bankruptcy estate, which tries to:Firstly, analzye bankruptcy estate components in China and give some amendment opinions: cut out" property attained by the bankrupt enterprise from declaration of bankruptcy to the termination of the bankruptcy procedure" and "other property rights that should be exercised by the bankrupt enterprise."Secondly, analyze the controversial issues of whether the follwing items belong to bankruptcy estate: security property ,right of using state land, public welfare facilities, staffs money to raise fund, house and insurance money and so on. In the meantime, put forward personal views and system concept to solve these problems.Thirdly, analyze briefly two problems directly related to the amendment of bankruptcy estate system of China and give some opinions: on the scope of bankruptcy law enforcement, our new bankruptcy legislation should choose general legislationism; on the bankruptcy administrator, establish the system of interim property administrator, perfect selection, qualification and obligation system of bankruptcy adminstrator in order to protect bankruptcy estate and creditor's interests.