Study On The Secured Claims In Bankruptcy Proceedings

With the continuous development of market economy,China's enterprise bankruptcy law has changed from simply clearing up the assets of bankrupt enterprises and settling creditor's rights and debts to saving enterprises,balancing the interests of creditors and debtors to achieve the optimal distribution of interests.The real right guarantee system is crucial to the protection of creditor's rights.It can not only promote the development of credit,improve the debtor's credit and performance ability,but also promote the reduction of transaction costs and risks,the guarantee of transaction performance and the maintenance of market order.The rule of stay refers to the creditor's rights in the bankruptcy procedure stop exercising,unsecured creditor's rights in bankruptcy procedures for the rule of stay are no objection,but is the rule of stay apply to the guaranteed creditor's rights,secured creditors can exercise the guarantee to guarantee property rights,under what circumstances should stop exercising,there are different views in theory and practice.At the same time guarantee the creditor's right to suspend the exercise of the problems in the bankruptcy process is fuzzy,so to re-examine the bankruptcy proceedings in the exercise of the guaranteed creditor's rights,to explore the rule of stay applicable feasibility in bankruptcy proceedings in our country,to fair protect creditors' rights,provide feasible theoretical guidance for judicial practice is of great significance.In this paper,the rule of stay is taken as the research perspective and problem awareness as the guidance.In addition to the introduction,it is divided into the following four parts:The first part is to legislate the definition of secured creditor's rights in the bankruptcy procedure,distinguish the real right guaranteed in the civil law from secured creditor's rights in the bankruptcy law,define the concept of secured creditor's rights in the bankruptcy procedure,and define the scope of secured creditor's rights studied in this paper.According to the legislative evolution of secured creditor's rights in China's bankruptcy law,this paper analyzes the changes in the relationship between secured creditor's rights and bankrupt creditor's rights,secured property and bankrupt property in China's bankruptcy legislation,and its influence on the exercise of secured creditor's rights.The second part,from the perspective of the rule of stay,analyzes the application of the rule of stay in the United States,Germany and Japan on the premise of discussing the concept of stay rule,its applicable significance and the application of the theoretical basis of the rule in bankruptcy proceedings.From the commonalities and differences between the three countries applying the rule of stay,the feasibility of applying the rule of stay in China's bankruptcy procedures is sought.The third part,from the interaction of the development of bankruptcy law and the security law,explores the value dilemma of bankruptcy system and secured creditor's rights,and Cards and evaluates the problem of bankruptcy reorganization procedure,the bankruptcy settlement procedure and bankruptcy liquidation procedure in China's judicial practice.In the bankruptcy reorganization procedure,the scope and period of suspension of the exercise of the secured claims are ambiguous,and the provisions of the compulsory approval and reorganization plan for the secured claims are unclear.In the bankruptcy liquidation procedure,there is a question of whether the secured claims are subject to the provisions of the suspension of enforcement procedures.At the same time,the subject and time of guaranteeing the realization of property are vague,and the way to guarantee the settlement of creditor's rights is too rigid.In the bankruptcy settlement process,the excessive rights of the secured creditor may hinder the smooth progress of the settlement process.The fourth part,on the premise of widely referring to the foreign bankruptcy law on the rule of stay,based on the basic national conditions and judicial practice of our country,draw the conclusion of improving the system of secured creditor's rights in the bankruptcy process of our country.In the process of bankruptcy reorganization,the scope of suspension of secured creditor's rights should be limited,and the time of suspension of secured creditor's rights and the application of the court to the compulsory approval of the reorganization plan should be clarified.Article 19 of the enterprise bankruptcy law shall be interpreted in a limited manner in the bankruptcy liquidation procedure,the subject and time of realization of secured creditor's rights shall be specified,and adopt flexible debt repayment methods.In the process of bankruptcy settlement,the rights of secured creditors should be properly restricted so as to realize the smooth progress of the settlement.