On The Guarantee Responsibility Of Interest In Bankruptcy

The subject of this paper is that,according to the provisions of Article 46(2)of the Enterprise Bankruptcy Law,stopping calculating interest When accepting the bankruptcy application will result in a corresponding reduction in bankruptcy claims,or whether the reduction will affect the interest portion of the debt.It means whether the guaranteed debt will stop calculating the interest in the circumstance of the stop of the calculation of interest of the main debt when entering the bankruptcy proceedings.In the judicial practice and the theoretical circles,the understanding of the above-mentioned law is controversial.The main issue is whether the clause has made a breakthrough on the subordination of guarantee and therefore draw a conclusion of whether the guaranteed debt will stop the calculation of interest in the circumstance of the stop of the calculation of interest of the main debt.In addition to the introduction and thanks,this article consists of four parts:The first part will analyze the legislative reasons and legitimacy of stopping the calculation of the main debt’s interest when enter the bankruptcy proceedings.It will prove the legitimacy of stopping the calculation of the main debt’s interest when entering into the bankruptcy proceedings.Putting it as a prerequisite,this article will raise the question of whether the guaranteed debt will stop the calculation of interest followed by the main debt’s stop the calculation of interest.The second part will analyze the provisions of Article 46(2)of the Enterprise Bankruptcy Law’s explanation of meaning and purpose explanation and system explanation.From the point of view the explanation of meaning,the provision of Article 46(2)of the Enterprise Bankruptcy Law has not mentioned that this limitation can apply to guaranteed debt.Therefore it cannot be extended to explain this provision;from the point of view purpose explanation of the provision,the purpose of this provision is not to eliminate the interest portion of the guaranteed debt.It only quickly promotes the bankruptcy proceedings and fairly handles the claims;from the point of view the system explanation of this provision,all the provisions in the "enterprise bankruptcy law" related to the guarantee of liability are reflected a breakthrough on the subordination of guarantee and therefore the explain the provisions of Article 46(2)of the Enterprise Bankruptcy Law should also be in accordance with the principle of breaking through the subordination of guarantee in Enterprise Bankruptcy Law.The third part will analyze the interest debt’s features of breaking through the ancillary of guarantee from legislative purpose,changing of concept,legal relationship,the function of Guarantee system,and the other performance of breaking through the subordination of guarantee.The conclusion can be drawn that the most important legislative objective of bankruptcy legislation is to satisfy the interests of creditors to the maximum extent possible and the bankruptcy legislation concept has changed.However,the bankruptcy law on the protection of the relevant stakeholders does not mention the guarantor.In the presence of a guarantee,if the law wants to maximize the interests of creditors,breaking through the subordination of guarantee is the Enterprise Bankruptcy Law’s existing choice;Guarantor is not the main body of the bankruptcy law’s legal relationship so it cannot be entitled to the relevant rights and undertake obligations in the insolvency proceedings and therefore it cannot be entitled to the same benefits with the main debtor to ensure the guaranteed debt’s interest debt to stop the calculation of interest when accepting the bankruptcy application;On the basis of good effect of guarantee system,in particular the good effect to protect the realization of claims or guarantee the recovery of economic benefits,breaking through the subordination of guarantee is a reasonable explanation;From the independent guarantee and the maximum guarantee system can be seen that its application is based on the autonomy of the parties,rather than based on the direct provisions of the law to change the original subordination of guarantee,the legal system of bankruptcy directly breaking through the subordination of guarantee,mainly because the insolvency proceedings is a concentrative procedure to dispose the creditor’s rights and debtor’s debt,it has its special background,in the situation of debtor’s property can not pay off all the debt,to the purpose of fair handling the claims and debts,In this special procedure must be accompanied by the sacrifice of the interests.The four part concludes that Article 46(2)of the Enterprise Bankruptcy Law has made a breakthrough on the subordination of the guarantee.Therefore,the limitation only has effect on the main debtor and has no effect on the guaranteed debt’s interest debt.Thus the guaranteed debt will not stop the calculation of interest followed by the main debt’s stop of the calculation of interest.The guarantor shall bear the guaranty liability in accordance with the original guarantee contract and continue to calculate the interest to the date on which the main debtor actually repays or the guarantor actually repays,and shall use the conclusion to make advice to legislation,judicial and Guarantor.