Research On Exercise And Restriction Of Bankruptcy Exemption Right

Bankruptcy procedure refers to a series of activities under the organization of the bankruptcy manager in the court,such as the liquidation of all assets,labor relations,creditor and debtor relations,etc.The law creates bankruptcy law in order to help the insolvent debtor exit from the trading market smoothly,and in order to enable creditors to get the greatest degree of settlement.However,the exercise of the right of exclusion will make it difficult for the debtor to pay off all the claims of the assets become less,which is related to the definition of bankruptcy property,the balance of interests between the right of exclusion and other ordinary creditors,the rate of debt repayment and other issues.Therefore,the right of bankruptcy exclusion is a very important system in bankruptcy proceedings.The right of exclusion is a unique concept in the bankruptcy law,which means that the creditor enjoys the priority of compensation based on his basic rights to certain specific properties of the bankruptcy debtor.Article 109 of the enterprise bankruptcy law of our country points out that in the bankruptcy proceedings,the creditor with security right for some specific properties of the debtor can be repaid first in the process of the debtor's repayment of debts.The theoretical circle thinks that this is the concept of the right of exclusion in our country.In the process of dealing with bankruptcy cases,the right of exclusion is a decisive system.The right of exclusion is a new right in the bankruptcy law,which is not a kind of entity privilege newly established in the bankruptcy law.Although the right of exclusion is a new right in the bankruptcy law,it is still a bankruptcy claim,which can not be denied.The most important point that the right of exclusion distinguishes other rights is whether the security is provided by the debtor,which also determines whether it constitutes the right of exclusion in the sense of bankruptcy.In the case that the security comes from the third party,the debtor does not have the ownership of the property,so the security right is only the existence of the civil law,rather than the exclusion right in the bankruptcy law.The prerequisite for the effective of the right of exclusion is that it has the basic right of legality and existence.And law of our country did not make that clear the range of rights on the basis of right of exclusion,according to the "bankruptcy law" article 109 can only determine the rights of real rights for security is the basis of the right of exclusion,real rights for security in our country mainly include mortgage,pledge,lien.Through the study of a large number of cases,in judicial practice,the construction project priority is usually treated as the right to exclude disputes,for part of the money guarantee can also be identified as the right to exclude.Although the current law does not provide detailed provisions on the right of exclusion and the basic right of the right of exclusion,the issue has gradually become clear in different cases and in the actual operation of the court.The exercise of the right of exclusion has greatly reduced the debtor's bankruptcy property and reduced the repayment rate of other ordinary creditors.First of all,the real right of security and creditor's right need to comply with the relevant provisions of contract law and property law at the same time,and have been in effect before the exercise of the right of exclusion.Secondly,for the bankruptcy law of some special provisions,the need for exclusion rights are in line with.According to the relevant provisions of China's bankruptcy law,the following two situations cannot constitute an exclusion right.For example,in article 31 of the bankruptcy law,the administrator can cancel the debts secured by property within one year before bankruptcy.Section33 of the bankruptcy code also states that it is invalid for fictitious debts and invalid for unreal debts even if the debtor acknowledges it.In some cases,the right of exclusion may also be forfeited.If the right to exclude the right to waive the right to priority compensation;Loss of the specified property under the right of exclusion;By paying off the debt,the bankruptcy administrator redeems the specific property,resulting in the invalidation of the right of exclusion,etc.In bankruptcy proceedings,the creditor's right of exclusion needs to be exercised under the provisions of the law.The creditor who enjoys the right of exclusion shall not dispose of the subject matter of the right of exclusion by himself outside the bankruptcy proceedings.The subject matter of the right of exclusion shall be managed and changed by the bankruptcy administrator.After the administrator confirms the right of exclusion and the amount of claims of the creditor,the subject matter shall have priority in compensation after changing the price of the subject matter.According to the provisions of the bankruptcy procedure of our country,after the debtor is decided by the court to accept the bankruptcy application and appoint the administrator,when the creditor declares the creditor's right,it is necessary to explain the amount of the creditor's right,explain whether there is a security right at the same time,and submit the corresponding evidence materials.It was also stipulated that creditors who failed to report correctly could not enjoy the priority of compensation under the right of exclusion.According to these two provisions,it can be seen that if the creditor fails to declare claims secured by property in accordance with the provisions,the relevant rights cannot be exercised in this case.The right of exclusion is the right that the right holder can enjoy the priority of compensation with specific property.The purpose of requesting the right holder to declare claims is to make it easier for the court and the administrator to understand the status of the bankrupt and to understand more comprehensively.At the same time,the realization of the right of exclusion depends on the disposal and realization of the assets by the manager.The person with the right of exclusion cannot get rid of the manager and the bankruptcy procedure and dispose and realize the specific property by himself.In addition,the creditor's right of the exclusionary right may not be fully paid off through specific property,and the remaining part still needs to be distributed together with other ordinary creditors through bankruptcy procedures.The administrator checks the right of exclusion to determine whether it meets the conditions for entry into force and the extent of the obligation to exercise the right,as well as to protect the secured property from being disposed of by creditors outside the bankruptcy process.Therefore,creditors with secured claims can simultaneously confirm their real right of security and claims,and it is also convenient for the administrator to clarify the property status of the debtor and protect the legitimate rights and interests of other creditors.In the liquidation process of the right of exclusion,special attention should be paid to the liquidation sequence between the right of exclusion and the right of exclusion and other priorities.As for the liquidation sequence of the right of exclusion,we need to refer to the priority sequence of its basic rights.In the basic right,the lien is prior to the mortgage,so,in the bankruptcy proceedings,the lien based on the right to receive the priority of the lien based on the right to terminate the same property from the two based on the lien and the mortgage at the same time.As for the priority of construction project,the current judicial practice takes it as a kind of right of exclusion.When the priority of construction project and other right of exclusion based on security real right exist simultaneously,the priority of construction project should be compensated in priority over other right of exclusion based on security real right.For the same subject matter,if the right of exclusion and other legal preemption exist at the same time,the general preemption cannot take precedence over the right of exclusion,unless the law has special provisions.The exercise of the right of exclusion also needs to be limited,especially in the bankruptcy reorganization process,in order to the overall situation of the bankruptcy case,will temporarily limit the exercise of the right of exclusion.After the court accepts the bankruptcy application of the bankrupt enterprise,it is likely to happen that the person with special right disposes privately outside the bankruptcy procedure,sells the secured property,the debtor conceals the transferred property,or the creditor requests the court to make compulsory execution or preservation measures in the civil case outside the bankruptcy procedure.This situation may result in the loss or depreciation of the bankruptcy property,so that the debtor who is unable to pay all the debts cannot restructure or directly reduce the interests of other creditors.So,after our country bankruptcy law stipulates bankruptcy application is accepted,ought to suspend all compulsory execution or safeguard measure,this includes the execution that suspends to assure property.As for the limitation of the right of exclusion in the bankruptcy reorganization procedure,the article 75 of the bankruptcy law of our country has also made clear provisions and explanations,and these security rights should be suspended during the reorganization.This is also on the basis of the legislative thought of the bankruptcy law,which makes the bankruptcy system more conducive to the insolvent debtors to regain a new life.Bankruptcy proceedings in our country,limit the right of exclusion of people outside the bankruptcy process to deal with the collateral or the right of exclusion points to the subject matter or delay,so the collateral or the subject matter of the right of exclusion points to delay still depends on the insolvency administrator,and the manager of collateral or the right of exclusion points to the treatment of the subject matter,time also may limit the creditors to exercise of the right of exclusion.If the bankruptcy proceedings can be better promoted,or the interests of all creditors are not completely infringed upon,the limitation of the right of exclusion is necessary,provided,of course,that the actual interests of the right of exclusion are not harmed.The importance of the right of bankruptcy exclusion to the bankruptcy process is self-evident,but the legislation does not make detailed provisions on the system,which directly leads to the actual handling of bankruptcy cases,the issue of bankruptcy exclusion can not be depended on.In this context,this paper hopes to find a solution by studying a series of problems such as the exercise and limitation of bankruptcy exclusion right.Through a large amount of collection,comparison and research,this paper discusses one by one the issues in bankruptcy exclusion right that are more controversial and difficult in practice,and there may still be some issues that are not covered.I will continue to conduct a more in-depth study on the issue of bankruptcy exclusion right.