Research On The System Of The Right Of Compensation And Recovery In Our Country’s Bankruptcy Procedure

The system of indemnity repossession rights in bankruptcy is a special repossession system that protects the interests of the property owner when the general repossession rights cannot be exercised under circumstances such as the destruction of the obligee’s property,and extends the effectiveness of the repossession rights holder’s property rights to the original.On the basis of compensatory property,whether it is considered from the basis of law and economics for maximizing benefits or from the basis of law and sociology for balancing interests,it has its legitimacy value and positive significance.Germany,Japan,Switzerland and other civil law countries have clearly stipulated the system of the right of compensation.From the beginning of the legislation of the bankruptcy law to the promulgation of the new bankruptcy law,the system has not been established in the legislation and the specific system design has not been established in our country.The advanced experience of extraterritorial law,the development of the domestic economy,and the deepening of the concept of fairness all require the development and improvement of the right of compensation system.However,it is not difficult to find through case analysis that there are imperfect legal provisions and lack of uniformity in practical operation in the specific application of the system of compensation and withdrawal.Issues such as unclear definitions and compensation targets.According to our country’s existing legislation and judicial practice,when we improve the system of the right of compensation,we should make the system of the right of compensation clear in the legislation,and then improve it from the two aspects of constitutional requirements and procedural settings.Among them,the constitutive requirements should include the clarification of the subject of the right,the object of the retrieving right no longer exists,the existence of treatment benefits that can be distinguished from the bankruptcy property,and such factors as not being exercised in accordance with bankruptcy procedures.The improvement of the right of compensation procedure should start with the conditions for the initiation of the procedure,the specific time regulation,and the specific circumstances and methods of exercise.