Research On The Application Of The Law Of Bankruptcy Exemption Right In China

The enterprise bankruptcy law of China "(hereinafter referred to as the" bankruptcy law ")has been issued for ten years,although the law enacted in the beginning to play an important role in the integration of the original scattered bankruptcy regulation and promoting the modernization of our country and other aspects of the bankruptcy system,but with practice,the" first true Chinese on the market exit law "in some system design deficiencies also began to gradually exposed.In these problems,legislative defects exemption system is one of the focus.This article focuses on this focus,through the theoretical basis of the system and the analysis of the current operating mechanism,carding out the system in the application of the existing problems,and try to put forward some targeted suggestions.The text is divided into three parts.The first part describes the theoretical basis of the exemption right of exemption right,through the interpretation of the concept of rights,rights based attribute analysis,range analysis on the connotation of the concept,nature and extension boundary in detail.In the interpretation of the concept,it is obvious that the exemption is a unique concept of bankruptcy law in civil law system,Anglo American law system although there are corresponding,but the connotation to obviously narrower than the exemption system.China's current "bankruptcy law" does not use the concept of "exemption",the legislative expressions are still lacking.For the right attribute of the exemption right,should be in accordance with the general theory,it is willing to recognize the civil law real right and legal continuation of special priority in bankruptcy procedure,but should pay attention to the effectiveness of the content and the scope has a bankruptcy procedure,the unique characteristics between the source rights and not of course equivalent.On the exemption scope of the basic rights,guarantee right is undoubtedly included,special priority and the guarantee can be included,but retained ownership should not be included in the deposit is suitable in the form of currency or specific object and belongs to.The second part analyzes the existing substantive law on the exemption system of the running mechanism,and pointed out the operation mechanism of exposed problems in practice.This part first introduces the "bankruptcy law" on the exemption system of the standard system,and the standard system development background,the background for the expansion mechanism analysis.Then,based on the standard system of exemption right,from the exemption right and limitation of the two dimensions of the specific operation mechanism and the mechanism in the process of applying the problem in detail.In the exercise of the exemption right,the operating mechanism in the liquidation order,compensation scope and other aspects of the program settings is still relatively rough,still remains in fine perfection;in some aspects,such as the declaration of rights,rights,rights confirmation,part of the system design is unreasonable,the necessity of new organic tanning.In the limit of the exemption,the operating mechanism is not well coordinated to protect and restrict the scale between the two and the idea of legislation,in the procedure of reorganization of the exemption limit in the reconciliation process is too heavy,and too focused on protecting,not only caused the interests between the right person and other stakeholders the imbalance,also affected the play of the two system of bankruptcy prevention function.The third part is the comparison method for reference,through the analysis of the civil law and common law jurisdictions in the typical exemption or the corresponding system design,summarizes the common trend of the evolution of two legal system,at the same time to tease out the distinctive and has a good effect for the design of the system,provide perfect horizontal reference for our country's exemption system.The fourth part is the suggestions of the exemption right system in China,mainly for the second part of the problem give concrete solutions.First of all,our country should improve the formulation of the exemption system legislation,not only to clear the use of the word "exemption" in the legislation,the rights should be clear in the design of the law when the scope of the basic rights.Secondly,the exemption right,we should summarize the practical experience,and learn from foreign legislative achievements,the right of reporting,determination,priority rights,implementation and other aspects,through the introduction of the exemption period for exercising system and management system and realized correction of the creditors' meeting vote set to resolve to exist problems in operation mechanism.Finally,in the exemption limit,in the reorganization procedure on the exemption right limits should be appropriate to relax,to protect the reconciliation procedure on the exemption right should be narrowed,to reconcile the relationship between restriction and protection,balance the interests between the parties,and promote the bankruptcy prevention system function.