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An Analysis Of The Order Of Repayment In The Bankruptcy Law During The Republic Of China Period (1912-1949

Posted on:2024-02-17Degree:MasterType:Thesis
Country:ChinaCandidate:Y X LiFull Text:PDF
GTID:2556307049979119Subject:Legal history
Abstract/Summary:PDF Full Text Request
The basic purpose of bankruptcy legal norms is to distribute the bankruptcy property fairly among creditors.The liquidation order of bankruptcy claims is highly policy-oriented and uncertain.Based on the consideration of public interests and policies,legislators have given priority to partial claims as an exception to the principle of equal distribution.The arrangement of the repayment order between various bankruptcy claims reflects the choice and balance between different interests of legislators.Since modern times,China’s bankruptcy liquidation order system has undergone a tortuous and long development process.At the end of the Qing Dynasty and the beginning of the Republic of China,the bankruptcy liquidation order was in the initial stage from scratch.The bankruptcy liquidation habit of the traditional society and the western bankruptcy liquidation order system broke out in fierce conflict,and the traditional debt liquidation order based on "identity" was gradually broken;During the period of the Beijing government in which the bankruptcy statutory law was absent,the Dali Court introduced the traditional commercial customs through the case law and explanatory examples,incorporated them into the framework of the national law,and integrated with the modern concept of bankruptcy liquidation,and established and improved the bankruptcy liquidation sequence based on "contract";During the period of the Nanjing National Government,the thought of social law was popular,and the social legislative activities flourished.On the basis of the Bankruptcy Law of the Republic of China in 1935 and relevant laws and regulations,a relatively mature bankruptcy liquidation order system was formed,and the social standard bankruptcy liquidation order system was established.The order of repayment oriented by social interests has deeply affected the judicial decision.The gradual attention paid to the protection of vulnerable creditors in practice has made the distribution of interests among creditors fair and reasonable.This paper takes the order of creditor’s rights in the bankruptcy law of the Republic of China as the research object,and takes the time as the clue to sort out the development process of the order of creditor’s rights in the bankruptcy law of the Republic of China,and analyzes the expression of the order of creditor’s rights in the bankruptcy practice at each stage.The full text is mainly divided into four parts.The first part analyzes the background of the emergence of the bankruptcy liquidation order system in modern China,analyzes the modernization of the bankruptcy liquidation order on the basis of the changes of debt liquidation in the bankruptcy laws of modern countries and the provisions of the bankruptcy liquidation order in the bankruptcy law of the Great Qing Dynasty in 1906,in order to explore the conflict between the inheritance law and the inherent custom under the background of the modern legal reform,and the setbacks faced by the construction of the bankruptcy liquidation order system.The second part expounds the relevant concepts of the order of bankruptcy liquidation,and differentiates and analyzes the relevant legal concepts.The third part analyzes the construction of the bankruptcy liquidation system in the bankruptcy law of the Republic of China.Sort out the provisions of the bankruptcy liquidation order in the bankruptcy law text with the clue of time,including the Bankruptcy Law of 1915 in the period of the Beiyang Government,the Draft Bankruptcy Law of 1934 in the period of the Nanjing National Government,and the Bankruptcy Law of 1935.On the basis of sorting out the legal sources of the liquidation order system,observe the changes in the value orientation of legislators and the background of the times reflected behind.The fourth part is to explore the application of the bankruptcy liquidation rules in practice,taking the judicial cases of the Republic of China as the starting point.In combination with judicial adjudication,the role of the bankruptcy liquidation order system in the bankruptcy practice in different periods is observed from a microscopic perspective,and the overall appearance of the adjudication of bankruptcy cases in the early Republic of China under the background of the reform of the judicial environment is displayed.In the arrangement of the repayment order of various bankruptcy claims,it is often necessary to choose and balance the interests of different creditors,reflecting the different value orientations of legislators.The study of the legal text norms and judicial practice experience of the bankruptcy liquidation order system in the Republic of China is conducive to understanding the impact of different arrangements of the liquidation order system on the interests of creditors in modern times from the perspective of legal history,providing ideas for achieving the balance between different interests as far as possible in the current design of the bankruptcy liquidation order system in China,and also providing reference for realizing the equal protection of bankruptcy claims.
Keywords/Search Tags:the Republic of China era, Legal transplantation, Bankruptcy claim, Discharge order, Judicial decisions
PDF Full Text Request
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