Research On Exercise And Limitation Of The Bankruptcy Exemption Right

The "PRC Enterprise Bankruptcy Law"(hereinafter referred to as the "Enterprise Bankruptcy Law") implemented in2007has already changed the current unconnected situation of our country’s Bankruptcy legislation, and made our country have a real law for market exit. The bankruptcy exemption right, as an important legal system of Bankruptcy Law, has also embodied more reasonable and more scientific regulations. However, the regulations of exercises and restrictions on the bankruptcy exemption right in the Bankruptcy Law have weak operability, and need to be further improved, which depends on scholars’further study and discussion. Based on the regulations of the bankruptcy exemption right in our country’s Enterprise Bankruptcy Law, this paper goes deeply into the exercises and restrictions on the bankruptcy exemption right, and also put forward improved suggestions to exercises and restrictions on exemption right in the bankruptcy legislation of our country.This paper firstly combs the basic theories of the bankruptcy exemption right, makes a detailed discussion on the concept, characteristic, basic rights, nature and legislative value of the bankruptcy exemption right. Then it probes into the conditions, characteristics and conflicts of exercising bankruptcy exemption right; points out the deficiencies in regulations of bankruptcy exemption right exercise; and puts forward improved suggestions. The final results show that the changing of bankruptcy legislation idea makes the priority of compensation right be restricted, and the restrictions are necessary. The restrictions from the bankruptcy law are embodied in procedural rights restrictions and entities rights restrictions; while regulations of bankruptcy exemption right restrictions should be improved under the background of current bankruptcy law system.Based on referencing the theoretical research results on bankruptcy exemption right legislation at home and abroad, this paper does an in-depth and systematic research on bankruptcy exemption right exercise and restriction, puts forward some innovative opinions and suggestions:In the aspect of bankruptcy exemption right basic theories, it poses the nature of bankruptcy exemption right has double right attributes of real right and creditor’s rights. In the aspect of bankruptcy exemption right exercise improvement, it poses firstly the creditor’s rights declaring which exercised by bankruptcy exemption right should be changed into the rights declaring; secondly we should build system of time limit for bankruptcy exemption right exercise; thirdly the implementations of bankruptcy exemption right should establish the principle of "whoever occupies, who changes the price". In the aspect of bankruptcy exemption right restriction improvement, it poses firstly that the exemption right in the settlement process should be introduced into bankruptcy reconciliation protection; secondly in the reorganization process, we should set up delay compensation system for exemption right restriction; thirdly to the entity rights, we should delete "new and old cross section" rules for exemption right.The study of bankruptcy exemption right exercises and restrictions will contributes to deepen our understanding and research of bankruptcy exemption right theories, provide theoretical references of bankruptcy legislation in our country, and also make the implementation of bankruptcy exemption right more reasonable and operational, at last implement the goal of bankruptcy legislation.