The Realization Path Of Transferring Security Right In Bankruptcy Procedure

Generally speaking,the traditional guarantee types include "human security","material security" and "money security".In judicial practice,there is a non typical way of guarantee transfer different from the traditional guarantee types.It is the concrete manifestation of the perfect combination and flexible use of the secured creditor's rights and the subject matter ownership in the commercial activities.At the same time,it also embodies the respect for the party's autonomy of will and the transaction habits.In the economic life,the transfer guarantee system is quite necessary and irreplaceable.In reality,there are many forms of guarantee similar to transfer guarantee in commercial transactions in our country.In academic research,we should combine the actual needs of market economy,so as to improve the relevant systems and promote the development of law.Based on the analysis of the relevant cases and the gist of the judgment of the assignment security under the bankruptcy procedure,this paper analyzes the realization path of the assignment security right under the bankruptcy procedure,taking the obstacles existing in the connection between the assignment security and the bankruptcy procedure as the starting point.This paper is mainly divided into four parts: the first part,the question.From the practical cases,it briefly summarizes the problems existing in the realization of the assignment security right under the bankruptcy procedure;the second part,the analysis of the nature of the assignment security.To solve the qualitative problem of transfer guarantee system,and to clarify the legal structure of transfer guarantee system.Based on the nature of its security,the assignment security should adopt the legal structure of new security interest on the basis of the theory of security right constitution;the third part,the choice of assignment security right configuration mode in bankruptcy proceedings.To solve the problem that the assignment of security right is not clear under the bankruptcy procedure.Through the analysis of the advantages and disadvantages of the disposition of the right of recovery in bankruptcy and the disposition of the right of exclusion in bankruptcy,the assignor of the security right should be given the priority of the right of recovery when the debtor goes bankrupt,that is,the right of exclusion rather than the right of recovery;the fourth part,the realization and limitation of the right of exclusion of the assignor of the security right.On the basis of the conclusions of the second and third parts of this paper,this part first expounds the exercise of the alienating right of the secured party,and then creatively puts forward suggestions to give the alienating secured party the right of indemnity.On the basis of admitting that the transfer has the right of exclusion in the bankruptcy procedure,in order to fully guarantee the realization of the right of exclusion in the transfer,it is suggested that the transfer should be given the right of exclusion in the special circumstances such as the damage and loss of the subject matter of the guarantee,and the oblige can exercise the right of exclusion based on the right of in the matter;finally,in order to make the transfer and the general The balance of creditor's interests puts forward reasonable restrictions on the realization of the right of alienation of the mortgagee in the bankruptcy proceedings,especially in the two typical cases of "excessive guarantee" and "secret guarantee".To sum up,this paper focuses on the realization path of the assignment security right in the bankruptcy procedure,taking the nature of the assignment security system as the logical starting point,the assignment of the rights of the secured party in the bankruptcy procedure as the connection,and finally returns to the realization of the assignment of the secured party in the bankruptcy procedure,and puts forward innovative suggestions and relevant restrictions.I hope that this paper can provide some new ideas for the study of the transfer guarantee system in the bankruptcy procedure.