破产别除权理论与实务研究

别除权是破产程序中一项重要的优先受偿权利,其优先权的行使不受破产清算与和解程序的限制。根据新破产法的规定,别除权之债权属于破产债权,其担保物属于破产财产。别除权的基础权利是担保物权及特别优先权,定金担保债权和一般优先权不享有别除权。同一担保物上存在两个以上的担保性质相同或不同的别除权时,应依据相关法律规定确定各项别除权间的清偿顺序,以保证破产程序的公平、顺利进行。别除权人享有破产申请权,也应当申报债权,未依法申报债权者不得依照破产法规定的程序行使权利。别除权人是债权人会议的成员,未放弃优先受偿权者也有表决权,但对债权人会议与其无利害关系的特定决议事项无表决权。新破产法对债权人会议表决标准的规定仍有需完善之处。

Exemption Right in the Newly Enacted Bankruptcy Law

Exemption right is an important priority in bankrupt procedures and its exercise is free from restrictions from the liquidation and reconciliation procedures.According to the newly enacted Bankruptcy Law,exemption right belongs in creditorship of bankruptcy and the guaranty involved herein is defined as bankruptcy property.The basis of exemption right is the theory of security interest and particular priority.Secured credit based on earnest money and common priorities should be excluded.To make sure the bankruptcy procedures are impartial and effective,the order of different exemption rights should be properly arranged according to relevant laws when one or more exemption rights exist in a certain guaranty.Holders of exemption right have the right to apply for bankruptcy and should declare their creditorship,or their rights will be rejected.An exemption-right creditor is also a member of the creditors meeting.One who has not given up his priority enjoys the voting right,but can not do so in the creditors meeting and on some particular subjects that have no bearing on his interests.The standard of voting in creditors meeting should be consummated.