Research On The Judicial Guarantee To Guarantee The Realization Of Creditor's Rights In The Bankruptcy Procedure

In the case of the debtor's bankruptcy,the creditor claimed the guarantor's performance of the debt service obligation after asserting a claim.There is no specific regulation in the current legislation in China.There are also many problems at the judicial level.Courts at all levels have often considered that the balance of interests is often biased,resulting in unsatisfactory social effects,and hurting judicial authority.As for the scope of the guarantee responsibility of the guarantor,according to the legislative will and the behind-the-scenes value of the Guarantee Law and the latest judicial practice at home and abroad,the writer believes that the guarantor's debts paid to the creditors include not only the main debt,but also the interest after the commencement of the bankruptcy proceedings.Based on the current background of the active market economy,the bankruptcy of the enterprise has shifted from the traditional "liquidation type" to the "rescue type".The rule of stopping interest on the debt is obviously inconsistent with the market reality and should be changed.Therefore in judicial practice,bankruptcy credits and guarantee credits should be distinguished.The bankruptcy credits are subject to the special provisions of the bankruptcy and interest-restriction rules.However,the rules only apply to bankrupt enterprises rather than to guarantors.The scope of debt service obligations is adjusted by the Guarantee Law.In practice,the handling of such cases is not the same.At the end of the last century,most of these cases were suspended in the manner of adjudicating the suspension of cases,waiting for the debtor's enterprise to end the bankruptcy proceedings;the same was to prevent the emergence of double compensation,and there was a conditional judgment with the suspension of trials.The legal basis is mainly derived from the subordination characteristics of the contract,so as to explain that the scope of the guarantor's performance of the debt repayment amount should not exceed that of the bankrupt enterprise.Both of the above-mentioned two practical treatment methods are unreasonable,which damages the legitimate rights and interests of the creditor;The latest practical results should be the judgement of guarantor shall bear the guaranty liability.Through the interpretation of the corporate bankruptcy law and the guaranty law,it is concluded that in the case of this paper,the guarantee contract breaks through the dependency limit.The creditor must obtain the guarantor's reimbursement directly.Since the guarantor's performance of the debt repayment obligation may lead to the emergence of double compensation problems,the following coordination methods exist in practice:1.After the guarantor fulfills the liquidation obligation,the guarantor can declare the bankruptcy credit right according to the legal recourse right of the debtor;2.After the obligation,the creditor can reach a consensus to directly obtain the creditor's right to compensation in the bankruptcy proceedings;3.Coordinate the double settlement problem in the execution of the case;4.The guarantor can apply for the transfer to exercise the right of recovery.The first type of guarantor has more disadvantages in reporting the creditor's rights to the debtor's enterprise.Since the legislative level in China does not stipulate the transfer of legal credits,in practice,the creditor's rights are often agreed through the agreement of the two parties.,the writer believes that the second treatment is also a good solution.The third and fourth methods actually coordinate the issue during the execution of the case,which not only ensures the good implementation of the Guarantee Law and the Enterprise Bankruptcy Law in the proceedings,but also enables the creditors to realize their rights in a timely manner.Preventing creditors from being double-liquidated for the same creditor's right,harming the legitimate interests of the guarantor.