论预告登记之债权在破产程序中的法律地位和保障

Legal Status and Safeguard of the Creditor's Right that Has Been Lodged the Registration of Caution in Bankruptcy Procedure

预告登记之债权与我国传统破产法中的各项权利有本质不同,其具有相对独立的法律地位。预告登记之债权在破产程序中的保障和实现具有特殊的规则:在破产申请受理阶段,预告登记排除个别清偿无效原则、管理人选择权的适用;在破产重整程序中,预告登记后债权受营业保护的限制,对债权的分类而言,预告登记后的债权应当单列,它具有特定的债权调整方法;在破产和解阶段,预告登记具有对抗登记义务人之破产和解协议的效力;在破产清算阶段,预告登记后的债权与一般债权和别除权的顺位关系应根据实际情况具体分析。

The status of the creditor＇ s fight that has been lodged the registration of caution is relatively independent, which is es- sentially different from other legal fights in bankruptcy law. The safeguard of the creditor＇ s rights that has been lodged the regis- tration of caution, as well as the settlement of such debt, in bankruptcy procedure should follow the specific principles, such as the principle that repaying debt separately is invalid and manager option were both excluded from registration of caution at the time the bankruptcy petition has been accepted; during bankruptcy restructuring process, the creditor＇ s rights is restricted by business protection after the registration of caution has been lodged, as to the classification of creditor＇ s rights, creditor＇ s right that has been lodged the registration of caution should be listed separately, because a specific debt adjusting method is applied to it ; at the stage of bankruptcy settlement, registration of caution may be a valid defense against registering party; at the bankrupt- cy liquidation stage, the sequence of the creditor＇s right that has been lodged the registration of caution, general creditor＇s right and the exemption right should be formed according to the actual situation.