Study On The Protection Of Guaranteed Creditor's Rights In Bankruptcy Restructuring

Guaranteed Guaranteed creditor's rights are in the position of priority in traditional bankruptcy law.Generally speaking,this priority is to ensure that the exercise of secured creditor's rights can not be restricted by bankruptcy liquidation and reconciliation procedures,so it can be better than other creditors to be independently and timely repaid.(1)In order to compensate for the complex conflicts of interest of secured claims in bankruptcy liquidation and bankruptcy reconciliation proceedings,(2)The Enterprise Bankruptcy Law of the People's Republic of China(hereinafter referred to as the Enterprise Bankruptcy Law)officially implemented on June 1,2007 stipulates the bankruptcy reorganization system in the form of a special chapter in Chapter 8.This system breaks the traditional existing state of the secured creditor's rights from the substantive level,and establishes corresponding restrictive rules for the execution of the secured creditor's rights in the reorganization procedure,which lays the foundation for realizing the goal of the reconstruction and revival of the debtor of the enterprise.In view of the current situation that there are more restrictions and insufficient guarantees in our legislation on secured claims,this paper focuses on the protection of the interests of secured claims in bankruptcy reorganization.The first chapter of this paper expounds the necessity of protecting the interests of secured creditor's rights in bankruptcy reorganization and the difficulties it faces.The first section of this chapter demonstrates the necessity of protecting the interests of the secured creditor's rights in bankruptcy reorganization,that is to say,guaranteeing the secured creditor's rights is beneficial to the balance of interests between the bankruptcy reorganization system and the guarantee system,to the maintenance of market economic order and to the guarantee of social justice;the second section points out that there are three dilemmas in the protection of the interests of the guaranteed creditor Extensive restrictions on collateral hinder the security of market transactions;secondly,in practice,the debtor is likely to use bankruptcy reorganization procedures to evade debts;finally,the secured creditor's losses often face the risk of being difficult to recover.Chapter ? of this paper focuses on the dilemma of the protection of the interests of secured claims in bankruptcy reorganization.After analyzing the relevant provisions of the reorganization chapter of the Enterprise Bankruptcy Law of China,it is found that the reasons for the dilemma of the protection of the interests of secured claims lie in the following three points: First,the current legislation restricts the exercise of secured claims is imperfect,that is,there are burdens.Second,the degree of the secured creditor's involvement in the reorganization procedure is insufficient,that is,the secured creditor has no right to modify the draft reorganization,no right to challenge the court's "imposition" and no right to supervise the implementation of the draft reorganization;finally,the secured creditor seeks relief.The unclear method also leads to the dilemma of protecting the interests of the secured creditor's rights,which is manifested in the lack of specific compensation methods for delayed liquidation of the secured creditor's rights and the simplicity of relief methods for damaged collateral.Chapter three tries to put forward some suggestions to improve the protection of the interests of secured creditor's rights in bankruptcy reorganization procedure through the analysis and reference of foreign experience.Firstly,it is suggested that the conditions for suspending the exercise of secured claims in reorganization proceedings should be regulated by making a specific distinction between the time point of exercising secured claims and the collateral.Secondly,it is suggested that the weight of therestructuring plan should be increased by granting the secured creditor the right to modify and adjust the draft reorganization,establishing a pre-court hearing system for objection and strengthening the supervision of the secured creditor over the implementation Finally,it is suggested to improve the remedy method of secured creditor's right to intervene in the whole procedure by specifying the relevant provisions of deferred interest compensation and establishing the compensation mechanism for damages of collateral.