Research On Perfect Restriction Rules On Real Rights For Security In Bankruptcy Reorganization System

The purpose of bankruptcy reorganization legislation is to prevent bankruptcyand rescue reconstruction, facing the enterprises’ plight, through the reorganizationof external creditor’s rights and interior debt, the enterprises can continue to run thebusiness, so as to get rid of financial problems, and go back on track. Therefore,That’s why the real rights for security is restricted in the procedure of bankruptcyreorganization. However the real rights for security as the most effective way toguarantee the debts in the modern society once was restricted would breach the valueof the real rights for security system, and even affect the social economy foundation--credit. Two kinds of system seems have irreconcilable value conflict with eachother, but if we study deeply, you will find that these two systems can be coordinated,and achieve the balance of their interests. In the modern enterprise management, inorder to get more money enterprises often use their own assets, such as movable andimmovable, raw materials, semi-finished products as collateral to banks or otherfinancial institutions to lend money. Once the enterprise traped in debt crisis,creditors will have the priority right for debt repayment based on the real rights forsecurity. For enterprises, immediately realized the real right for security, especiallythe critical security rights for business, may make the enterprise loses its ability, sothat the enterprise can only go bankrupt. But the bankruptcy reorganization system isdifferent from the reconciliation and liquidation system, the limitation on the realright for security during the process of reorganization, and the reorganization plan ofthe enterprise to maintain the normal business activities and continue to create value.This can not only save the business difficulties, but also to protect the interests ofcreditors. Based on the legislation value goal, the newly implemented "enterprisebankruptcy law" in2007newly added the eighth chapter--the reorganization system.The system to save the business difficulties, to help enterprises reformingreconstruction as the goal, to limit the reorganization of the real right for security, but because of the provisions are too broad, many details of the problem don’t havespecific detailed rules, which will bring difficulties to the practice operation. Itshould strengthen the restrictions on the rules in the reorganization procedure of realrights for security.In this paper as the perfect the bankruptcy reorganization of restrictive rulessystem of real rights for security a research object, the first part of this articlethrough summarizing the bankruptcy reorganization system and real rights forsecurity system, to understand the concept and the scope of the bankruptcyreorganization system, as well as the classification of real rights for security and itsrole, function and value of different property right clearing form of real right forsecurity. The second part puts forward the problems of the real right for securityrestrictions rules of procedure of bankruptcy reorganization. China’s bankruptcy lawon the basis of the foreign bankruptcy law, although the provisions of the real rightsfor security restrictions in line with international trends, but only the broadprovisions and lacking of specific operational rules, there will be no legal basis forthe practice, not know what course to take situation. Therefore, the third part on thebasis of this, to analyze the value of the real right for security system and thereorganization system, and points out the value conflict of the two system andcompromise which the two system and can reach, which finally stand in theperspective of interest balance to analyze the problem of the real right for securityreorganization, strengthen the legislative purpose of reorganization system in China,as well as the necessity of limitation about the real rights for security. The fourth partof the article Mainly from the extraterritorial legislation, mainly America andGermany bankruptcy law which can give our bankruptcy reorganization systemspecific rules of operation for reference, at the same time we should combine ourcivil actual conditions. The last part of the article, give the bankruptcy reorganizationsystem and real right for security exact proposals for providing beneficial thinking toother researchers on this problem.This paper mainly adopts the method of literature research, the subject of theresearch is perfect restriction rules on real rights for security in bankruptcyreorganization system. By searching the all kinds of literature about the subject wecan correctly understand the bankruptcy reorganization system and the legislationvalue of restriction the real rights for security, historical evolution, current researchstatus, and reference works about bankruptcy reorganization system, including theextraterritorial legislation, such as America bankruptcy law, Germany bankruptcylaw. By comparative with these literature and works, we can easily analysis thesubject and deeply understand the subject in the whole view.The legislative purpose of bankruptcy reorganization makes it is inevitable forreal right for security be restricted. That is why many scholars at home and abroad atpresent stand in the perspective of interest balance, focus more on the protection ofthe security interests, and discussed how to protect the doctrine of real right for security in the limit at the same time. The author believes that, in the premise ofthinking about how to protect the real right guarantee should be of real rights forsecurity restrictions should be strict, comprehensive, and should not be in thepresence of many control loopholes and premise controversial practice. Thereforethis research mainly based on such a starting point. The so-called restriction rulesmeans the regulations of the real rights for security suggestions of our bankruptcyreorganization system should be reasonable, comprehensive, since it has beenrestricted, it should be efficient and results for the reorganization plan, and even thewhole reorganization procedure. From this point on, restricted rules of real right forsecurity is the perfect protection of real right for security.