Rethinking and Reconstructing the Bankruptcy Stop Rule
Interest is a consideration for the use of funds;the debtor's use of funds does not cease when it falls into insolvency and interest continues to accrue after insolvency is admitted.Insolvency proceedings cannot change the core content of substantive rights,and thus interest continues to exist after the bankruptcy is admitted,but it cannot be discharged as an ordinary bankruptcy claim.Guarantee liability is subordinate to the entity claim,which is not reduced by the declaration and determination of the bankruptcy claim,and the guarantor bears the interest after the acceptance of the bankruptcy application,which is in line with the reasonable expectation of the parties,and protects the interests of the guarantee system and the social and economic interests.Therefore,Article 22 of the Civil Code Security Interpretation,which stipulates that the guarantor shall not bear the interest after acceptance of the bankruptcy application,lacks legal basis and is suspected of breaking through the provisions of the Civil Code and exceeding the authority of judicial interpretation,shall be corrected in the future.The Enterprise Insolvency Law should abandon the rule of bankruptcy moratorium and set up a system of subordinate claims,incorporating interest after bankruptcy acceptance into the subordinate claims and stipulating the rules on the calculation of interest and the time of calculation of interest in the case of substantively consolidated bankruptcy.
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