Restrictions And Protection Of The Secured Claim In The Reorganization Proceedings

Reorganization and security interest have an important role in the legal systems through out the world, the conflict of which in the reorganization is that reorganization restricts security interests as well as protects it. Recently such problem has maintained many attentions, and scholars from most countries and regions are arguing about it. The author tries to do some research on it.The first chapter is definition of some concepts used in this article. In the first part, the author gives a brief introduction of the concept of reorganization. In the second part, the author especially defines the concept of "secured claims" in the following three aspects: the origin of the concept;the elements of the concept;comparison with other related concepts. In the second part the author also introduces the classification of "secured claims" in the insolvency law of foreign countries.The second chapter concerns the academic basis of the thesis. In the first part, the author introduces the evolvement of the intention of security interest, arguing that the security interest's function of financing has absorbed attention increasingly, but its main intention is to secure claims. In the second part, the author introduces the evolvement of the intention of reorganization, arguing that the value of reorganization lies on protecting public interests, the creditors and the debtor, and protecting the public interests is its core value. In the third part, the author analyzes the conflict and harmony of the intentions of reorganization and security interest, pointing out that such two intentions conflict with each other, which embodies mainly in the conflict between the public interests and private interests. The author also argues that such two intentions can harmonize so as to ensure the equilibrium of many interests and to realize the social justice.The third chapter concerns the material restriction on the secured claims in the reorganization in most countries. The author reviews the regulation of secured claims in the insolvency law of some main countries in a comparative way, and summarizes the restriction in the following nine aspects: the avoiding power;preserving system in the insolvency law;restriction on secured creditor's control of the collateral;trustee's disposition of the collateral or intervention in the realization of the collateral of the secured creditors;loss of interest;degrading of priority;limitations on the floating liens;restriction from the reorganization plan;individual debtor's special avoidingpower.The forth chapter concerns the material protection of the secured claims in the reorganization in most countries. After comparison, the author summarizes the protection in the following five aspects: relief from preserving system in the insolvency law;restriction on the trustee's disposition of the collateral;payments after realization of the collateral;restriction on the degrading of priority;the restriction on the forcing confirmation of the reorganization plan.The fifth chapter concerns the suggestion in dealing with the reorganization and secured claims. In the first part, by absorbing the advanced experiences of foreign insolvency law and integrating the legislative practice in our country, the author brings up some suggestion in the following eight aspects: declaration of the claims;avoiding power;preserving system and relief from it;whether the secured creditors' control of the collateral should be restricted;the trustee's disposition of the collateral and the limitation on such disposition;accounting of interest;degrading of priority;reorganization plan. In the second part, the author concludes one principle in dealing with the relation of reorganization and secured claims in judicial practice: the realization of the value of reorganization should be preferred, and on the base of such realization, make sure that the secured claims obtain adequate protection.