| Since the creditor in the “grant guarantee” does not bear the risk of damage to the subject matter,the set-up person can continue to use the subject matter in order to maximize its use value.Therefore,“grant guarantee” has a great role in promoting economic development and is widely used.However,when the guarantee setter is insolvent,since the “grant guarantee” is not the legal guarantee method in China,the bankruptcy administrator cannot characterize the “grant guarantee” credit,and the core of the bankruptcy law is fair to all creditors of the debtor enterprise.If the compensation is not properly handled by the administrator,it will directly affect the distribution of the bankruptcy property,and it is difficult to achieve the goal of equal protection of the interests of all creditors.This paper takes the practical problem as the starting point.By analyzing the different doctrines of "grant guarantee" in other civil law countries,combined with the characteristics of the bankruptcy system,it is considered that the "grant guarantee" is established once the validity of the publicity means is established.When the bankruptcy application is accepted before the acceptance,the “grant guarantee” creditor will receive priority compensation in the bankruptcy proceedings.At the same time,in order to guarantee equal compensation for other creditors,it is necessary to impose necessary restrictions on their priority compensation.This article is divided into four parts.The first part is the obstacle to the application of “guarantee guarantee” in bankruptcy proceedings.The first is to obscure the legal attributes of the guarantee system,resulting in different judicial decisions.Secondly,the “grant guarantee”affects the distribution of the bankruptcy property.In addition,the right to change the price of the subject matter of the guarantee is unclear.Finally,there is a conflict between the guarantee and the four rights in the insolvency proceedings.The second part is the classification and legal structure of “grant guarantee”.Commenting on the composition of ownership,the theory of the formation of a security right,the formation of a mortgage,and the change of the second paragraph of property rights,the authors commented on the systems of Germany,Japan and Taiwan from the comparative level,and compared two different forms of And the rationality of the construction of the guarantee law.The third part is the space for the application of “grant guarantee” in the bankruptcy system.From the perspective of bankruptcy revocation right,offsetting right and rescission right,it analyzes the application of “grant guarantee” in bankruptcy proceedings,and denies the basis for the security right holder to claim the right of repossession to the bankruptcy administrator.The fourth part is the proof of the priority of the “grant and guarantee” claims.Firstly,it analyzes the rationality of giving priority to the “grant guarantee” right holders from the aspects of transaction purpose,efficiency arrangement and establishment background.Secondly,it affirms its legitimacy of priority compensation from the aspects of current legal norms,changes in property rights and judicial practice.Finally,the priority of compensation is limited in terms of the value of the collateral,the attribution of the price change,and the means of publicity. |
