The Protection Of Secured Creditor’s Right In Reorganization

In order to ensure the maximization of the property of the troubled enterprise and realize the value goal of safeguarding the public interest,it is necessary to limit the realization of the secured creditor’s right in the restructuring procedure.The legislative provision of guaranty creditor’s right in the reorganization procedure has insufficient protection on guaranty creditor’s right.Through defining and discriminating the concept and characteristics of the secured creditor’s right in the reorganization procedure,and analyzing the legitimacy of the restriction of the exercise of the secured creditor’s right in the reorganization procedure from the legislative value goal and the realization of the legislative purpose,the necessary state of the legislative protection of the secured creditor’s right is determined.This article analyzes the incompatibility between the legal rules of guarantee creditor’s rights and the legal status of guarantee creditor’s rights in the law of bankruptcy reorganization and concludes that the existing rules are insufficient.The deficiencies of the protection of guaranteed creditor’s rights in the reorganization process are the fuzzy rules of the suspension of the exercise of guaranteed creditor’s rights,the unclear standard of the applicable conditions of compulsory approval and the lack of execution path of the supervisory reorganization plan.In view of the system of suspending the exercise of security right,the deficiencies of the existing rules are analyzed from the three perspectives of the scope of the corresponding guarantee property,the type of the guarantee creditor’s right and the conditions of resuming the exercise of the guarantee creditor’s right.It is proposed that the scope of the guarantee property should be limited in the necessary conditions of the reorganization procedure,and the type of the guarantee creditor’s right applicable to the system should be the guarantee creditor’s right which does not transfer the possession of the guarantee property.The conditions for the resumption of the exercise of secured claims should be suggestions that secured claims are not adequately protected in the restructuring procedure.In the mandatory approval system,the court forced the approval of the secured creditor group through the reorganization plan of the rules,from the court’s review standards,the fair compensation of the delay of the loss of the identification standard and the secured creditor’s right has not suffered material damage analysis of the legislative rules,It is proposed that the examination standard for the application of compulsory approval system by the court should be "liquidation standard",that is,the treatment given to secured creditors by the draft reorganization plan should not be lower than the benefits obtained by secured creditors in the liquidation procedure,and the losses incurred by the delayed repayment should include the interest incurred during the reorganization period and the interest incurred from the date of approval of the reorganization plan to the date of actual repayment.The suggestion that the secured claims are not materially harmed should be determined in accordance with the draft reorganization plan that the secured creditors shall not be provided with money or indemnities other than the secured property and that the depreciation of the secured property during the reorganization period should be compensated.In view of the path of the guarantee creditor supervision restructuring plan,from the relief rules of the guarantee creditor and supervision of the implementation of the restructuring plan analysis of the lack of legislation,put forward by giving the guarantee creditor relief right and the right to supervise the implementation of the restructuring plan,to build the guarantee creditor supervision path of the implementation of the restructuring plan.