Study On The Exercise Of The Right Of Dissent In The Allowance Of Bankruptcy Claims

The allowance of bankruptcy claims is a system in which the insolvency administrator first investigates and confirms the declared claims(or the claims without application),and then the court finally confirms whether the corresponding claims can participate in the distribution of bankruptcy property.The result of the allowance of bankruptcy claims is not only related to the creditor’s right to distribute the bankruptcy property and the creditor’s right to participate in the subsequent bankruptcy proceedings,but also related to the interests of others in the bankruptcy proceedings.As a result,the process of the allowance of bankruptcy claims is a high incidence zone of objections in bankruptcy proceedings.The dissenting right of the relevant subjects in the allowance of bankruptcy claims,that is,the right to express different opinions on the result of allowance by the subjects of power,should be given special attention to.However,in the Enterprise Bankruptcy Law of the People’s Republic of China(hereinafter referred to as the Bankruptcy Law),there are few laws directly related to the right of dissent in the allowance of bankruptcy claims.From the practice of the allowance of bankruptcy claims in our country,the dissenters can not only exercise the dissenting right in the stage of initial confirmation of bankruptcy claims by the administrator,the stage of checking bankruptcy claims by the creditors’ meeting and the stage of reviewing disputed claims by the administrator,but also exercise the dissenting right by bringing the action for allowance of bankruptcy claims.But from the provisions of Bankruptcy Law,the legal rules still focus on the action for allowance of bankruptcy claims,without giving enough attention to other ways of exercising the dissenting right,and without clarifying other requirements while exercising dissenting right.According to the article analysis of the relevant norms of our country’s dissenting right,the investigation of our country’s practice of confirming bankruptcy claims and the literature analysis on the allowance of bankruptcy claims,at present,there are many problems in China,such as the subjects of dissenting right,the objects of dissenting right,the stages to exercise dissenting right,the methods to exercise dissenting right and the regulations about abuse of dissenting right are not clear.On the basis of clarifying the existing problems of the dissenting right in the allowance of bankruptcy claims in our country,through the analysis of the legal basis while exercising the dissenting right,the investigation of the historical origin of the current norms about allowance of bankruptcy claims,and the comparative study of the allowance system of bankruptcy claims in China and overseas countries and the practice of allowance of bankruptcy claims in various parts of China,as it turns out,exercising the dissenting right and resolving the dissents when the insolvency administrator confirms the bankruptcy claims can reduce the time and economic cost of the dissenters,and can also reduce the litigation burden of the court,help the subjects who confirms the bankruptcy claims to clarify the debtor-creditor relationship more accurately and efficiently,and promote the efficient and orderly conduct of the subsequent bankruptcy proceedings.In connection with China’s judicial practice and drawing on the experience of other countries,to improve the exercise of the dissenting right in the allowance of bankruptcy claims in China,the subjects,the methods of exercise,the objects of exercise,the time and the supporting measures should be clearly defined.As to the rights holders,the subject of the dissenting right in our country should be limited to creditors and debtors;as to the methods while exercising the dissenting right,the right of dissent can be exercised to the insolvency administrator at the stage of the manager’s initial confirmation of claims,to the insolvency administrator at the stage of the creditors’ meeting to check the claims,to the insolvency administrator at the stage of the manager’s review of claims,or to the court through bankruptcy claim confirmation litigation;as to the applicable objects,the right of dissent can be exercised over claims determined by a valid legal document before bankruptcy proceeding begins,over outstanding claims in litigation or arbitration,but not including claims confirmed in bankruptcy proceedings by the court;as to the applicable time of dissenting right,the application of the dissenting right in China is through the whole process of the allowance of the bankruptcy claims but should have term limits,that is,the dissenting right can be exercised from the time when the administrator preliminarily confirms the bankruptcy claims until the dissenters filed a bankruptcy claim confirmation lawsuit up to the deadline,and at different stages of the allowance of bankruptcy claims,there will be corresponding restrictions on the exercise time of the dissenting right;in addition,in order to ensure the exercise of the right of dissent,it is necessary to perfect the relevant provisions of the right to know,to improve the legal system that can promote the faithful and diligent performance of insolvency administrator and to perfect other systems about preventing the abuse of the right of dissent,so as to ensure the accurate and efficient confirmation of bankruptcy claims,so as to highlight the legislative purpose of our bankruptcy law to fairly clear up claims and debts and protect the legitimate rights and interests of creditors and debtors.