Applicable Analysis Of The Debt Interests During Delayetd Performance Period In Bankruptcy Liquidation

In recent years,the"backlog of enforcement"and"difficulties in enforcement"have become the deadlock that has plagued the court system for a long time.On February 6,2017,the Supreme People's Court promulgated the"Guidance Opinions of the Supreme People's Court on Several Issues Concerning the Transfer of Enforcement Cases to Bankruptcy Review"with"Court issued[2017]No.2",which officially clarified the new measure to solve the difficult problem of enforcement in the form of lecgal documents——"the transfer of Enforcement to Bankruptcy".With the advent of the spring of "the transfer of Enforcement to Bankruptcy",it is bound to promote the growth of the number of bankruptcy cases accepted by the courts,which will undoubtedly become an important measure for the courts to implement the central supply-side structural reform.However,the"Guidance Opinions" are not judicial interpretations.The provisions are brief and abstract.The provisions are not specific and clear about many problems that may be encountered in bankruptcy liquidation.As for the debt interests during delayed performance period confirmed by courts in the enforcement phase,there is no clear legislative basis so far for whether these should be recognized as insolvent creditor's rights.Including Shenzhen.Sichuan and other places where the bankruptcy trials are in the forefront of the country,there are also disputes over the above issues.The above phenomena need further refinement and perfection of the legal provisions in order to truly solve the problems encountered in practice,and more in line with the characteristics and regularities of legislation and law.ln addition to the introduction and conclusion,this paper is divided into four parts.Combining classic jurisprudence with theory,based on practical experience analysis,I will put forward my own viewpoints and improvement suggestions,and then provide an effective reference path for the application of the debt interests during delayed performance period in bankruptcy liquidation.The first part outline,taking the origin of the debt interests during delayed performance period as the entry point,the paper analyses the debt interests during the delayed performance from two aspects of historical origin and institutional development,and then leads to the concept of the debts interest during delayed performance period.Also starting from the legal characteristics of statutory and dependent,mandatory and restraining,punitive and compensatory,this paper makes a detailed interpretation of the debt interests during delayed performance period.In order to realize the purpose of discussion and connection with bankruptcy claims,and then to clarify the concept of insolvent creditor's rights,through the analysis of the three legal characteristics of the insolvent creditor's rights,namely timeliness and priority.property and payment,legality and mandatory,this paper leads to the discussion of whether the debt interests during delayed performance period should be included in the insolvent creditor's rights.The second part is about the theoretical controversy and personal opinions of whether the debt interests during delayed performance period can be included in the insolvent creditor's rights.It demonstrates from two aspects:theoretical controversy and personal viewpoint.Firstly,it discusses and analyses the two mainstream views of the theoretical circles on whether the debt interests during delayed performance period can be included in the insolvent creditor's rights.It concludes that the focus of the controversy lies in the different interpretations of"after accepting bankruptcy cases".Secondly,from the point of view of the necessity,reality and feasibility of the debt interests during delayed performance period which should be included in the insolvent creditor's rights,this paper further confirms the author's view that whether the general debt interests or double debt interests during delayed performance period,should be included in the category of the insolvent creditor's rights.The third part is about the determination of the debt interests during delayed performance period injudicial practice.Through the combination of classical case and theory,from the perspective of administrator's work,taking a bankruptcy liquidation case handled by the author as an example,this paper summarizes the relevant problems encountered when the debt interests during delayed performance period are determined to be applicable in bankruptcy liquidation.This part expounds in turn whether creditor's rights exceeding the time limit of compulsory enforcement can be declared as the insolvent creditor's rights,the exploration of the debt interests during delayed performance period in the lawsuit for confirmation of the insolvent creditor's rights,the determination of general debt interests in bankruptcy liquidation,and the determination of the basis for calculating debt interests during delayed performance period,etc.Furthermore,it sums up the problems encountered in the judicial practice of the debt interests during delayed performance period,and confirms the necessity of enacting relevant legislation and judicial recommendations.The fourth part is the proposal to review and confirm the debt interests during delayed performance period of bankruptcy liquidation in China.From the following three aspects,legislation that there are laws to abide by:improving and perfecting the legal system,law-abiding that is evidence-based:formulating guidance cases and inferior creditor's rights system,judicature based on reason:establishing supervision mechanism and guarantee system of bankruptcy liquidation,the paper puts forward beneficial suggestions.We should improve bankruptcy laws and regulations,clearly classify the debt interests during delayed performance period as the category of bankruptcy creditor's rights,and make clear the basis for calculating the debt interests during delayed performance period in the foth of legislation.Formulate uniform judgment rules and review basis in each region,learn from foreign system designed for inferior claims,set up special financial supervision departments and accounting institutions for bankruptcy liquidation,and establish the integrated work flow of court-administrator in bankruptcy liquidation,etc.,so as to make the system of the debt interests during delayed performance period truly implemented in bankruptcy liquidation.