The Study On The Protection Of The Secured Creditor’s Interests In Reorganization Proceeding

Common risk behavior and common violations are inextricably linked, but by comparing the two analysis, the common risk behaviors and the common violations have essential difference, common risk behavior has its own peculiarity, it has the independent status in the law..As for the elements of common risk behavior, academic circles have not formed a unified point of view, there are three main theories, the three elements, the four elements and the five elements said. Elements common risk behavior should be analyzed from the four elements, the main elements, behavioral elements, damage facts elements and Causality requirements. Common risk behavior has its own characteristics, between the perpetrator in the subjective, they have no common fault, but in behavior, they have the risk of commonality. In main elements, it should be noted that the perpetrator of the common risk behavior is not only a natural person, legal person can also be the subject of the act. The causal theory have several elements, the alternative and cumulative causality, causal relationship, necessarily causation and presumption causality, putative causal.The said of presumption causal is the most Preferably, that in the case of not to determine the actual loss of innocent victims, the legal presumption of all acts of human behavior is the cause of the damage.Our law liability is clearly defined the manner of the risk behaviors, which requires that the perpetrator jointly and severally liable for the innocent victim, the perpetrator of the act of foreign assume in the theoretical, the basis of joint and several liability, is not common fault, but every actor implementation objective association behavior. On the division of responsibility for the behavior of people inside, the general provisions of national law to bear part of the common risk behavior right after the liability can not exercise the recourse liability to the other co-risk behavior against innocent victims. For proof exemptions common risk behaviors, there are two main theories:causation and causality preclude says prove that scholars dispute the main perpetrator of proof requirement exemption only explain whether their behavior and loss of innocent victims among no causal relationship, are not specifically identified the actual cause damage to innocent victims of the perpetrators whether liability. For these two theories, in order to strengthen the protection of the innocent victims and to identify the truth, prove causality said preferable.