On The Realization Of Assignment Guarantee In Bankruptcy Procedure

Assignment guarantee is a special kind of atypical guarantee that guarantees the realization of the creditor's rights by way of transfer of ownership.In recent years,disputes over grant and guarantee have developed rapidly in judicial practice in our country,and the relationship between them and bankruptcy procedures has also become particularly important.Legislation and theoretical research need to respond to the development needs of social and economic life.At present,the provisions on assignment of guarantee in my country's legislation are mainly concentrated in the Judicial Interpretation of the Guarantee System.However,there are still some disputes over the connection between the assignment guarantee and the bankruptcy procedure,as there is no clear provision in the law.This paper takes the realization of assignment guarantee in bankruptcy procedure as the research object.In addition to the introduction,conclusion and references of Chapter 1,it includes the following three parts:The first part,the conflict between assignment security and creditor's rights in bankruptcy proceedings.First,the nature and effect of the assignment guarantee are clarified.Regarding the nature of assignment of security rights,there are two theories in theory,namely,the theory of ownership and the theory of security rights.When discussing the validity of assignment guarantee,discuss its relationship with false civil acts and legal principle of real right.Clarifying the scope of bankruptcy claims and secured claims is helpful for the connection between bankruptcy procedures and assignment of guarantees.This part also discusses the property scope of the bankrupt debtor,and then discusses whether the subject matter of the transfer guarantee belongs to the bankrupt debtor's property.The second part,the realization status and the existing problems of the assignment guarantee in the bankruptcy procedure.This part discusses the status quo of assignment and guarantee disputes in bankruptcy procedures in our country's legislation and judicial practice,and summarizes the problems existing in the current system.The difference and development of the bankruptcy law and the security law have exacerbated the conflict between the two systems,and then the problem of how to balance the interests of the various subjects in the bankruptcy procedure has emerged.At present,there are still deficiencies in the specific implementation rules of assignment of security rights in bankruptcy proceedings in our country,and there is no clear implementation model.The third part is about the thinking of perfecting the realization of assignment and guarantee in bankruptcy procedure.This section is a response to the research question.There are two possible options,namely,the right to withdraw model and the model to exclude the right to withdraw,and the two models reflect different value orientations.After comparing and analyzing the two models,this paper thinks that the exclusion-exemption model is more reasonable.Based on the recognition of the doctrine of the constitution of the security right,the assigning secured party should be given the priority to be compensated under the bankruptcy law.There are mainly two ways to realize the preferential right of repayment,namely the disposal liquidation type and the vesting liquidation type.This part also proposes that certain restrictions should be imposed on the exercise of the right to exclude the assignment of security rights,the assignment of security should be publicized,and it is also necessary to be alert to the possible negative effects of excessive security.In order to improve the realization of the assignment guarantee in the bankruptcy procedure,it is essential to establish a system of expropriation by compensation.