The Study On The Protection Of The Secured Creditor's Interests In Reorganization Proceeding In Our Country

In order to avoid the social turbulences arose from the bankruptcy of the debtor, many countries had established the reorganization system to realize the salvation. Answering the call of world's legislation trend and the requirements of the nation, the reorganization system had been introduced into our country's current bankruptcy law.Reorganization and security interest have an important role in the legal systems in our country, which all made positive implications on the whole economic development. However, due to their respective attributes, there exist certain conflicts between them, the conflict of which in the Reorganization is that reorganization restricts as well as protects it. Recently such problem has aroused many attentions, and scholars from most countries and regions are arguing about it. To make the debtor getting rid of difficulties and to realize salvation, the reorganization system have to restrict the secured creditor's right. However, these restraints will impair the interests of the secured creditor. Therefore, to balance the various interests among the participants, great attention should be paid to protecting the interest of the secured creditor in the reorganization system. Compared to relative legislative system of major market economy countries or regions, contrast to relevant provisions of the reorganization in our country, analyze its shortcomings and put forward comprehensive proposals.The first section discusses the overview of reorganization system and guarantee system. This section describes the basal theory of reorganization and guarantee system.The main intention of guarantee system is to secure claims, but the value of reorganization lies on protecting public interests, the creditors and the debtors, and protecting the public interests is its core value. Due to their different value goal and function, there exist certain conflicts between them. Whether this legal device can be effectively implemented has much to do with the proper solution of the conflicts. The second section points out the existing problem of secured claims protection in reorganization in our country and studies comparatively on extraterritorial legislation. Since the reorganization implemented in our country, there are various problems of the protection of the interests of secured creditors. The causes of these problems are due to not be very thoughtful of legislation factors and not be consistent with the specific situation in our country. By contrast, there is a lot of legislative experience from the western countries and China's Taiwan region is worthy of learning from. However, we can not copy their legislative experience. We must learn from foreign advanced legislative experience and choose the legislative experience which is fit for the specific situation in our country, to further improve our country's legislation.The third section is that due to achieve balance of interests, there is necessary to protect the interests of secured creditors in the reorganization system. This part points out the significant implications of secured liens as well as its restraint in the reorganization. In order to fulfill the aim of reorganization and do no harm to the secured liens, the key is to keep balance between them.The forth section comes to the suggestion which will develop and perfect the measures of protecting the secured creditors'interests in the bankruptcy law. Based on the reference to oversea stipulations and the analysis of nowadays provisions, the author provides some suggestion to revise or supplement the bankruptcy law.