On The Restriction Of Secured Creditor's Rights In Bankruptcy Proceedings

The purpose of the bankruptcy procedure is to give the fair discharge among all of the creditors.In practice,satisficing the secure claims is one of the most important part of the bankruptcy procedure.The problem is based on the Property Law and the Guarantee Law,security interest should be satisfied before other creditors,but when it comes to the bankruptcy law,this fundamental principle facing the challenge of the legislative intent.This article will focus on how to solve this confliction without causing the damage of the existing legal system.To the beginning,the first chapter begin with the definition of guaranteed creditor's rights in the bankruptcy procedure.Consider the fact that in our legislation,there is no conception of “Exemption Right”,which is very unusual in continental law system,so it is necessary to understand the differences between the two conceptions hereinabove.On this basis,combining with the development of the guarantee system in now days,the scope and the form of guarantee has expanded broadly,so the basis of the guaranteed creditor's rights should do the same,to be more specific,it shall include the specified deposit guarantees and atypical guarantee form.Furthermore,the last part of this chapter also discuss the relationships between the guaranteed creditor's rights and some other related rights in the bankruptcy proceedings.During the second chapter,this article will analyses in our liquidation system,why is the fundamental principle of guaranteed creditor's rights shall be satisfied before other creditors established by the substantive law can not be apply to bankruptcy proceedings.Here are the reasons: first of all,the evolution of the value of bankruptcy legislation,in now days,the rescue of the bankrupt enterprise becomes a general trend across the world.Second,the principle of guaranteed creditor's rights shall be satisfied before other creditors may cause the damage of substantive fairness and justice,especially when it comes to the infringement of personal rights.Third,it may also cause some inefficient behaviors judging by legal value's approach.Combined these analyses with the legitimacy of the guaranteed creditor's rights itself,the author sums up the core idea of this article is that: the limitation of guaranteed creditor's rights in bankruptcy procedure only be lawful in the context of exercising the liquidate right,the compensation right can not be touched with respect to the entity law.Starting from the third chapter,this article will go through the whole bankruptcy proceedings to discuss the limitation of the guaranteed creditor's rights.First of all,how to confirm the guaranteed creditor's rights? In some countries,there is no need to report the creditor's rights,but our legislation chose the opposite,or else creditors may not be able to exercise their guaranteed creditor's rights in bankruptcy procedure.After this,this article will focus on bankruptcy reorganization,bankruptcy conciliation and bankrupcy liquidation procedure,to discuss why in different procedures,the limitation of guaranteed creditor's rights can be totally opposite.In the final part,this article will discuss the distribution of bankruptcy property.As we talked before,the compensation right shall not be limited,but there still are some arguments regarding whether the workers' creditor's rights,the taxation creditor's rights and the personal tort debt shall be compensated before guaranteed creditors.This viewpoint can not be held in the view of our current legal system.Furthermore,in practice,the rising problem is that when company enter into the bankruptcy procedure,almost all of the property has been set up the guarantee so that it has no property to pay off the bankruptcy expenses.In this scenario,some people believe the bankruptcy expenses should be compensated before guaranteed creditors.As the matter of fact,to establish a new system is way more operable than damaging the guaranteed creditor's rights.