Practice Approach and Legal Protection of Mutual Benefit Debt Financing
|英文摘要||Examining the status quo of judicial expansion of the type and time range of mutual benefit debt financing from practice, it is argued that the courts should follow the criteria of “common benefit” and “continue business for the debtor” to moderately expand and limit their boundaries. From the perspective of hermeneutics, clarify in Article 2 of the “Judicial Interpretation of the Enterprise Bankruptcy Law III” that “the creditor who provides loans advocates that the reference to Article 42 (4) of the Enterprise Bankruptcy Law shall give priority to the settlement of ordinary bankruptcy claims, and the people’s court shall support it” The specific meaning of the provisions, pointing out the defects of the clause is not logical and rigorous, it is recommended that China’s “Corporate Bankruptcy Law” should be corrected. Focusing on the conflict of rights between mutual benefit debt financing and existing secured claims, examining the “full protection” requirements for the application of the U.S. super guarantee priority, and logically demonstrating the guarantee creditors’ voluntary consent in China’s practice from the benefit theory, game theory, and relative priority The practice of postponing the commitment letter of mutual benefit debt financing is legal and justified.
|關鍵詞||共益債務、破產融資、一般優先性、超級優先權、Mutual Benefit Debt、Bankruptcy Financing、General Priority、Super Priority|
|DOI||10.3966/1815008X2020050045002 複製DOI DOI申請|