Study On Legal Issues Caused By Subordinate Credit

Compared with scheduled credit,subordinate credit reflects the principle of maximizing the interests of creditors.Subordinate credit has the intrinsic attribute of both legal system and financial instrument.Subordinate credit is special creditor's rights,liquidation order,Juridical Rule and Financial Instruments.The integrity of the legal system of subordinate credit should cover six aspects:types and scopes of subordinate credit,criterion rules of subordinate credit,rights enjoyed by subordinate creditors,confirmation procedure of subordinate credit,settlement procedure of subordinate credit,and the application of subordinate credit in the process of reorganization and conciliation.Although China adopts the standard of scheduled credit currently,the current legislation has left much space for the establishment and implementation of system of subordinate credit.The lack of legislation makes judgment in the dilemma of lawlessness and different results on similar cases.Therefore,China should introduce the standard of subordinate credit in relevant laws,especially bankruptcy law,and improve the relevant provisions of the legislation from the above six aspects.Besides introduction and conclusion,this paper is demonstrated in four chapters.The part of introduction presents the research background,the research value and the existing research results,and then states the research goal and innovation of this paper.The part of conclusion summarizes the main points of this paper,and expounds the development trend of subordinate credit.The first chapter is the basic connotation of subordinate credit.Firstly,this chapter introduces the concept,practical connotation and theoretical connotation of subordinate credit,through the above analysis,this chapter reveals the essence of subordinate credit.Then,it introduces the academic classification of subordinate credit to build a theoretical framework for the following passages.The second chapter involves theoretical and legislative studies of subordinate credit.In the theoretical research part,theoretical controversy and consensus of subordinate credit are introduced to demonstrate the research status,and put forward views on the theoretical disputes.In extraterritorial legislation part,this chapter induces and analyzes the contents of subordinate credit in the bankruptcy law of Britain,the United States,Germany and Japan.Through the above analysis,this chapter draws the outline of the whole system of subordinate credit in bankruptcy law.The third chapter is about the legislative and judicial status of subordinate credit in our country.In the current legislation,the creditor's rights which should have been classified into the category of subordinate credit are included in the category of scheduled credit,narrowing the scope of the creditor's repayment and making them unable to obtain the assigned amounts.Equitable subordination rule has not yet been incorporated into legislation in China,making justice in lawlessness.Subordinate credit has the function of financial instruments to promote the enterprise's scientific financing,but it couldn't be reflected in the bankruptcy settlement procedure and bankruptcy reorganization procedure under current legislation.The fourth chapter is about suggestions on adopting the system of subordinate credit in China.Legislation and judicial activities should be based on the principle of fair settlement,the principle of maximum settlement,the principle of equitable subordination and the principle of freedom of contract.In the aspect of substantive law,we should construct the system of bankruptcy creditor's rights,which is based on the common creditor's right as the main body,supplemented by priority creditor's rights,subordinate creditor's rights and scheduled creditor's rights.The legislation should clearly stipulate the types and scopes of subordinate credit,specifies the rights of subordinate creditor's.In the aspect of procedural law,it is necessary to improve legislation about confirmation procedure and settlement procedure of subordinate credit,and to make special provisions on the procedure of reorganization and procedure of conciliation.