A Study On The Guarantee Liability Of Interest Debt Produced During Bankruptcy

How to deal with the guarantee responsibility of the interest debt produced during bankruptcy is a blank point in the bankruptcy law and the guarantee law.And it involves many problems,such as the balance of the interests of the creditor and the guarantor,the conflict and unification of the bankruptcy legal system and the guarantee legal system,etc.The current article 46,paragraph 2,of the enterprise bankruptcy law of the people's Republic of China stipulates that "the interest of creditor's right shall cease to accrue when the bankruptcy application is accepted".Subject to this rule,the commencement of bankruptcy proceedings will cause the creditor to lose the right to claim for the performance of the interest generated during bankruptcy.However,this rule only narrows the scope of creditor's rights to the debtor,but does not make clear whether the creditor has lost the right to request the guarantor to bear the interest debt generated in the bankruptcy procedure,which not only leads to the conflict between the interests of the creditor and the guarantor,the conflict between the bankruptcy law system and the guarantee law system,but also leads to the confusion of judicial practice and the dispute of the academic circle On,there are two opposite views.The first one is the theory of interest negation.Most of the supporters of this view believe that the guarantor is not responsible for the debt of interest during the debtor's bankruptcy based on the subordination of the guarantee,and that the cessation of the calculation of the debt interest during the main debtor's bankruptcy should be equally applicable to the guarantor;the second one is the theory of interest affirmation,and those who hold this view believe that the effectiveness of the "bankruptcy cessation rule" should not extend to The guarantor shall bear the interest of the debt until the date when the debt is actually paid off.Although the theory circle and judicial practice of our country have not made a conclusion on the guarantee responsibility of the interest debt in the bankruptcy procedure,Germany,Japan,Britain and the United States have established the postbankruptcy creditor's rights system,which lists the interest debt during the debtor's bankruptcy into the post ranking debt which is inferior to the common creditor's rights At the same time,based on the subordination of the guarantee liability,the guarantor is required to bear the guarantee liability for the debt of interest during the debtor's bankruptcy.On the basis of analyzing and drawing lessons from the legislation of the guarantee liability of the interest debt in the bankruptcy procedure in the countries of the civil law and the common law,the author thinks that the bankruptcy law of China should expand the scope of the existing bankruptcy claims,include the debt interest generated during the debtor's bankruptcy into the scope of the bankruptcy claims,and make clear that it will be paid during the priority claims and the common claims,so as to The guarantor should provide legal basis for the guarantee responsibility of the debtor's debt interest during bankruptcy,and realize the unification of the guarantee law and the bankruptcy law.