Earticle

초록

영어

In the process of corporate bankruptcy reorganization, how to restrict secured claims and how to restore rights often directly affect whether the bankruptcy reorganization procedure can be successfully completed and whether the enterprise can obtain regeneration. If a large amount of secured debt is prioritized in the restructuring process, it is likely to affect the progress of the bankrupt enterprise's restructuring and recovery, as well as the degree of realization of other creditors' rights, and even lead to the failure of the enterprise's restructuring and falling into the debt quagmire again, unable to be reborn; However, if there is excessive restriction or even disguised reduction of secured creditors in the restructuring process, it is also highly likely to trigger credit risks for banks and other secured creditors, as well as negative consequences such as slow economic recovery caused by regional “loan reduction” by banks. Therefore, how to set appropriate restrictions on the basis of effectively protecting secured claims in bankruptcy reorganization is the key to balancing the rights and interests of all parties and ensuring the smooth recovery of the enterprise. The paper searched multiple legal databases in China for relevant cases from 2010 to 2025. Through statistical investigation of 189 cases, it was found that the majority of judges (up to 98.41%) ended to rule to maintain the suspension of the exercise of secured claims in bankruptcy reorganization, and only 3 cases (1.59%) had judges lift restrictions on secured claims. It can be seen that there are certain difficulties for secured creditors to request the restoration of their security rights in Chinese judicial practice, and their priority right to repayment has not been timely restored and protected after being restricted. The reasons behind this include unclear legislative scope for suspending the exercise of secured claims, overly single and inflexible statutory circumstances for suspending the exercise of secured claims, and heavy burden of proof for secured creditors to apply for the resumption of the exercise of their security rights. In contrast, many countries have established automatic suspension systems in their legislation, and while restricting the exercise of secured claims, they often adopt measures such as cash payments and providing alternative guarantees to protect secured claims in a timely manner. Among them, the provisions in the US bankruptcy law regarding automatic suspension mechanisms, collateral valuation practices, pre restructuring, and credit bidding rights are quite mature, resulting in a high realization rate of secured claims, and have been recognized and referenced by many countries. Firstly, in terms of automatic suspension, US legislation stipulates “sufficient protection” as a condition for maintaining “automatic suspension” and requires that this “sufficient protection” should be fully compensatory. If the bankruptcy administrator (trustee) cannot provide “sufficient protection”, the court may prohibit the debtor from using the property, and the secured creditor does not need to surrender the property before obtaining “sufficient protection”. In addition, in terms of burden of proof, creditors only need to bear the burden of proof for the issue of the debtor's property rights, while the debtor should bear the burden of proof for the fairness and impartiality of the automatic suspension and the “full protection” after the suspension. Secondly, in terms of the valuation of the secured property, the valuation determines the scope of protection that the secured debt should receive. In the United States, the valuation methods for collateral are mainly through litigation and negotiation, but there are certain risks or disadvantages for the parties involved in bankruptcy reorganization proceedings. Some scholars have proposed an optimized valuation method based on market value, which combines auction and option trading: first, auction options are formed on the collateral, and then a restructuring plan is formulated based on the auction results. Finally, after the restructuring is successful, the option owner can auction and sell the collateral again. This can greatly shorten the time that valuation takes up in the restructuring process, thereby reducing costs and improving the efficiency of the restructuring process. Thirdly, in terms of pre restructuring (pre packaging) and credit bidding rights that serve as guarantees, in the simplified and less time-consuming pre restructuring process, sufficient negotiations between the secured creditor and the debtor enterprise can ensure a high level of participation in subsequent restructuring procedures, thereby enhancing the certainty of realizing their own secured claims. The establishment of the credit bidding right is to enable the secured creditor to purchase the collateral on credit at the full value of the secured debt, thereby enabling the collateral to be sold at a market price that the secured creditor considers fair and reasonable. In this regard, it is suggested that the Chinese bankruptcy law optimize the restriction and protection mechanism for secured claims in three dimensions: first, improve the setting of automatic suspension clauses, add backstop clauses for “sufficient protection” measures, so that “sufficient protection” should achieve the goal of ensuring that the secured interests of secured creditors “always” remain in their original state. In addition, further improve the relief procedures for restoring secured claims, implement a mechanism for reversing the burden of proof, and respect the commercial judgment of enterprises in determining whether the collateral is necessary for the enterprise, while appropriately introducing professional evaluation agencies or expert opinions. Secondly, establish a scientific collateral evaluation system and add credit bidding rights to strengthen the protection of the rights and interests of secured creditors. Transforming the valuation method that combines auction and option trading into a “self valuation+third-party neutral evaluation” approach; When the value of the collateral may be underestimated, the secured creditor should be allowed to participate in the auction with their expected security interest in the collateral, thereby having the opportunity to obtain ownership of the collateral. Thirdly, actively establish a leading voice channel for secured creditors in bankruptcy reorganization procedures to enhance their participation and voice in the reorganization process. It is suggested that before the draft reorganization plan is submitted for voting, the secured creditors should have the right to participate in negotiations or make suggestions, and a deadline should be set for the secured creditors to participate in the formulation of the reorganization plan draft. In addition, a mechanism for handling objections from creditors regarding the draft restructuring plan should be established, and a hearing should be held before the court makes a strong ruling. In summary, the future revision of China's bankruptcy law should pay more attention to the balance between the restrictions and protection of secured creditors in reorganization, striving to achieve a win-win situation between achieving the goals of bankruptcy reorganization and protecting the rights and interests of secured creditors.

중국어

如何在破产重整中对担保债权进行有效保护的基础上设置适当的限制，是衡平各方 权益并保障企业顺利实现复苏的关键所在。笔者在中国多个法律数据库检索2010年至 2025年的十余年间相关案例，通过对189个案件的统计考察，发现绝大部分案件（占 比高达98.41%）倾向于裁决维持担保债权在破产重整中的暂停行使，仅3例案件（占 1.59%）解除了对担保债权的限制。可见，担保债权人请求恢复行使担保权存在一定 难度，其优先受偿权在遭遇限制后并未得到及时恢复与保护。这背后动因主要是立法 关于担保债权中止行使范围不明确、担保债权中止行使的法定情形过于单一且缺乏灵 活性、担保债权人申请恢复行使担保权的举证证明责任过重等。相较之下，不少国家 立法设置了自动中止制度，其中美国破产法关于自动中止机制、担保物估值实践、预 重整和信用投标权等规定颇为成熟，受到多国的认同与借鉴。对此，建在比较借鉴基 础上，议中国破产法对担保债权限制与保护机制在三个维度予以优化：第一，完善自 动中止条款的设置，增加“充分保护”措施的兜底条款，使担保债权人的担保利益始终 保持其本应有的状态，并通过施行举证责任倒置，在“担保物是否为企业所必需”的判 断上尊重企业商业判断，适当引入专业评估机构或专家意见。第二，搭建科学的担保 物评估制度、增设信用投标权，以强化担保债权人的权益保护力度。包括将拍卖与期权交易相结合的估值方法，改造为“自我估值+第三人中立评估”的方式；当担保物价 值可能被低估时，应允许担保债权人以其对担保物所享有的预期担保权益来参与竞 拍，从而有机会获得担保物的所有权。第三，积极构建担保债权人在破产重整程序中 的主导发声渠道，以提升担保债权人在重整程序中的参与度与发言分量。建议在重整 计划草案提交表决之前，担保债权人应享有参与协商或提出建议，同时应对担保债权 人参与制定重整计划草案设定期限。此外，设立重整计划草案的债权人异议处理机 制，规定法院强裁之前应召开听证会

목차

摘要
一、担保债权在破产重整程序中受限制的逻辑机理
二、担保债权限制与保护现状的实证考察
三、美国破产重整中担保债权限制与保护机制的镜鉴
四、中国破产重整中担保债权限制与保护机制的优化
五、结语
参考文献
ABSTRACT

키워드

저자

• 王兰 [ 왕란 | 厦门大学法学院教授，企业法治研究中心主任，法学博士 ]
• 黄伟佳 [ 황위가 | 福建省福州市永泰县人民检 察院第二检察部干警，法学硕士 ]

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간행물

표지보기 관심저널 등록

• 간행물명

  원광법학 [Journal of Law research]

• 간기

  계간

• pISSN

  1598-429X

• eISSN

  2508-4526

• 수록기간

  1962~2026

• 등재여부

  KCI 등재

• 십진분류

  KDC 360 DDC 340