| In a bankruptcy reorganization,it is necessary to limit the exercise of secured claims in order to maintain the material basis of the debtor’s business operations and to develop an effective draft reorganization plan.However,the regulation of this issue under the current law in China presents a state of excess restriction but insufficient protection,and the secured claims are thus unreasonably weakened.Therefore,there is a need to clarify the boundary of the limitation of the exercise of rights,to clarify the way to improve the protection,and to properly coordinate the conflict between the two systems with different value objectives,namely,security and reorganization.The article is divided into four parts to elaborate.Chapter I develops the issues from both theoretical and practical levels.Theoretically,it examines the jurisprudential basis of the restriction of secured claims and applies the cost-benefit analysis to measure its overall effect,and clarifies that the restriction of secured claims should not be overly aggressive.In practice,it examines the current legal norms in China,there are problems such as unclear scope of suspension of secured claims in bankruptcy reorganization,unclear criteria for determining the conditions of mandatory approval,defects in the way of valuation and realization of secured property,and disputes over the priority of secured claims for liquidation.Chapters Ⅱ and Ⅲ analyze each of the two specific rights of a secured claim.ChapterⅡ analyzes the limits of the secured claim’s right,focusing on procedural rights,to dispose of its value at three points in time,and uses interpretive theory to clarify the criteria for the corresponding normative conditions.The first is the stage of temporary impairment of the suspension of the exercise of the security right,which limits the timing of the exercise of the secured claim;the second is the stage of determination of the right to cram down the draft reorganization plan,which limits the autonomy of the secured creditor;and the third is the stage of realization of the value of the secured property appraisal and realization,which limits the degree of realization of the secured creditor’s right.Chapter Ⅲ focuses on substantive rights and analyzes the priority of secured claims from the perspective of the priority of payment arrangement.First,the advantages and disadvantages of the absolute priority rule and the relative priority rule are compared,and it is clear that China should choose the former as the priority rule for bankruptcy reorganization,which is the basis for subsequent specific priority adjustment.Second,the priority of nonadjustable interests such as personal tort claims and unsecured employee claims,bankruptcy expenses and common interest claims arising from reorganization financing are discussed separately from secured claims,and the priority of secured claims is identified.Based on the analysis in the first three chapters,Chapter Ⅳ draws on extraterritorial regulatory experience and proposes corresponding improvement initiatives.The restriction and protection of secured claims in bankruptcy reorganization discussed in this article can be said to be two sides of the same coin.In response to the current situation that secured claims are unreasonably weakened,the boundary of limitation should be set so that they will not exceed,and appropriate protection and remedy are given,both of which are accomplished at the same time,so as to achieve a balance and coordination between the interests of secured creditors and other creditors. |
