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浮动抵押制度和破产重整制度是我国《物权法》和《企业破产法》分别确立的两种法律制度,已实施多年,并取得了一定的社会效果,但是,由于两种制度的立法价值取向不同,制度设计存在缺陷,使得破产重整过程中浮动抵押权人的知情权和优先受偿权容易受到侵害,其与破产管理人交往中地位被动,其提起司法救济措施的权利也受到了一定程度的限制。有鉴于此,我们应该借鉴英美两国相关制度,通过建立针对浮动抵押权人的信息披露制度,设立监管人和自动冻结解除制度,确立浮动抵押固化及估值的程序,对管理人支配浮动抵押标的物实行必要限制等措施,以加强对浮动抵押权人权利的保护。
Floating mortgage system and bankruptcy reorganization system are two kinds of legal systems respectively established in China’s “Property Law” and “Enterprise Bankruptcy Law”. They have been implemented for many years and achieved certain social effects. However, due to the different legislative values of the two systems, , There are flaws in system design so that the right to information and the priority of floating mortgagee are easily infringed upon during the process of bankruptcy and reorganization. The status of passive mortgagee’s association with the bankruptcy administrator is passive, and the right to bring judicial remedies is also affected to a certain extent limits. In view of this, we should draw lessons from the relevant systems between the United States and the United States, through the establishment of information disclosure system for floating mortgagee, the establishment of a supervisor and an automatic freeze system, the establishment of floating mortgage curing and valuation procedures, the management of floating charge mortgage The subject matter to implement the necessary restrictions and other measures to strengthen the floating rights of mortgagee protection.