Research On The Exclusion Right Of The Grantee In Bankruptcy Procedure

Assignment guarantee is a common type of guarantee in China's judicial practice.Up to now,neither China's General Rules of Civil Law nor the "Guarantee Law" clearly stipulates the transfer of guarantee system.The bankruptcy severance right closely related to the transfer and guarantee is also an important theoretical issue,but the current "Bankruptcy Law" also does not provide for a bankruptcy severance system based on the transfer of guarantee.In practice,the case of concession guarantees in bankruptcy cases is relatively common,and legislation is required to respond to them and clearly stipulate them.Therefore,whether or not the exclusion right system can be applied in the bankruptcy proceedings of enterprises so as to give priority to the repayment of secured claims is an important issue that needs further discussion.This article takes "the right of exclusion of the guarantor in bankruptcy proceedings" as the research object.In practice,because of the unclear definition of the nature of the concession and the difference in the validity of the concession,the scope of the basic rights of the exclusion right in bankruptcy results.The division is unclear,revealing that there is an inconsistency between the concession guarantee system and the insolvency law.Regarding the current status of granting the right of the security right holder in bankruptcy proceedings,this article compares the relevant provisions of our country with those of foreign countries,and thus can reasonably define the scope of the basis of the right of exclusion to provide clarity for the formulation of judicial interpretations and the application of laws Theoretical basis.According to the mainstream view,it can be argued that the reason for claiming that the grant of guarantee is a false act and that there is suspicion of liquidity is not necessarily valid,and the grant of guarantee does not violate the statutory principles of real rights.The theory of security right in the nature of concession guarantee is formed on the basis of overall consideration of the theory of real right law and bankruptcy law,so it is more reasonable than the theory of ownership.In China,in addition to the typical guarantees such as mortgages,pledges,and liens,the basic rights of the guarantee are transferred.From the perspective of the nature of the guarantee,it can also become the right basis for the bankruptcy exclusion right.Firstly,the premise of granting the right of exclusion to the security right is clear,and priority can be paid in the insolvency proceedings,and then the exercise method and order of repayment of the security are selected according to the characteristics of the security of the transfer,and the exclusion right of the security right is transferred.Certain reasonable restrictions should be applied to prevent the formation of excessive guarantees and secret guarantees that damage the interests of other creditors.