关联企业违法破产立法规制研究
发布时间：2019-06-27 09:57
【摘要】：关联企业是在激烈的市场竞争应运而生的,其独特的组织结构对提高经营效率、减少经营成本、实现规模效益等方面有积极的作用,但正是其组织结构容易导致控制企业、实际控制人对从属企业过度操控,诱发不正当的关联交易,为关联企业间不当的财产转移、资金输送、资产或帐户混同等提供了天然的屏障,不易被外部债权人发现。一旦关联企业一个或若干个成员企业破产时,破产债务人可能无财产供债权人分配,或者各破产企业之债权人所得清偿明显不公。由于我国公司法、破产法、一般民事法律以及刑法对破产制度的有关规定主要适用于单一企业破产,对关联企业违法破产的情形难以适用,因此有必要在借鉴其他法域有关规制关联企业违法破产的先进制度的基础上,如衡平居次原则、实质合并原则、控制企业的补偿、赔偿责任、受益从属企业的连带赔偿责任等,构建我国关联企业违法破产的完整体系。本文除前沿和结语外,主要分三部分进行论述： 第一部分,关联企业违法破产形态分析,此部分主要对关联企业的涵义进行界定,探讨关联企业的内部关系与外部特征,并以案例的形式介绍关联企业违法破产的宏观表现形式,归纳关联企业违法破产的微观运作,上述分析使我们认识到关联企业违法破产明显有别于一般企业破产,其独特、紧密的组织结构为关联企业违法破产“创造”了条件。 第二部分,我国关联企业违法破产的立法现状及评析,这部分着重介绍了我国公司法、破产法、一般民事法律以及刑法对破产问题的有关规制,并指出上述法律制度在解决关联企业违法破产问题上存在的缺陷。 第三部分,完善我国关联企业违法破产规制的立法建议,该部分通过比较分析其他法域有关关联企业违法破产制度,结合我国具体经济情况,提出立法建议,主要包括引进衡平居次原则、实质合并原则,对我国已有的法人人格否认制度进行改造,确立控制企业的补偿、赔偿责任以及受益从属企业的连带赔偿责任。
[Abstract]:The related enterprise is in the fierce market competition, and its unique organization structure has an active role in improving the operation efficiency, reducing the operating cost and realizing the scale benefit, but it is the organization structure which is easy to control the enterprise, The actual controller overruns the subordinate enterprises, induces an improper related transaction, provides a natural barrier for the improper transfer of property between the affiliated enterprises, the transfer of funds, the mixing of assets or accounts, and the like, and is not easy to be found by the external creditors. In that event that one or several member of the associate enterprise are in bankruptcy, the bankrupt debtor may have no property for the distribution of the creditor, or the liquidation of the creditors of the bankrupt enterprise is manifestly unfair. Because of the company law, the bankruptcy law, the general civil law and the criminal law, the relevant provisions of the bankruptcy system are mainly applied to the bankruptcy of a single enterprise, and it is difficult to apply to the case of the illegal bankruptcy of the related enterprises. Therefore, it is necessary to draw lessons from other jurisdictions, such as the principle of equity, the principle of substantial merger, the compensation of the control enterprise, the liability of compensation, the joint liability for the benefit of the subordinate enterprises, etc., To construct a complete system of the illegal bankruptcy of the associated enterprises in our country. In this paper, in addition to the leading edge and the epilogue, the main part of this paper is to discuss: The first part, the analysis of the law-breaking form of the affiliated enterprise, this part mainly defines the meaning of the affiliated enterprise, and discusses the internal relation and the exterior of the related enterprise. In the form of case, the paper introduces the macro-forms of the illegal bankruptcy of the related enterprises, and sums up the micro-operation of the enterprise's illegal bankruptcy. The above-mentioned analysis makes us realize that the illegal bankruptcy of the related enterprises is distinct from the bankruptcy of the general enterprise, and the only one The close organization structure is an illegal "create" of the related enterprises. The second part, the present situation and the analysis of the law of the law, the bankruptcy law, the general civil law and the criminal law to the bankruptcy of our country. It also points out that the above-mentioned legal system exists in solving the problem of the illegal bankruptcy of the related enterprises The third part is to perfect the legislative proposal of the law of the illegal bankruptcy of the related enterprises in our country. The part of this part is to put forward the legislative suggestions by comparing and analyzing the system of the illegal bankruptcy of the related enterprises in other jurisdictions, mainly including the introduction of the principle of equity and the real estate. On the basis of the principle of quality and quality, the existing legal personality denial system in China is reformed, the compensation of the control enterprise, the liability of the compensation, and the company's connection with the subordinate enterprises are established.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291;D924;D923
本文编号：2506697
[Abstract]:The related enterprise is in the fierce market competition, and its unique organization structure has an active role in improving the operation efficiency, reducing the operating cost and realizing the scale benefit, but it is the organization structure which is easy to control the enterprise, The actual controller overruns the subordinate enterprises, induces an improper related transaction, provides a natural barrier for the improper transfer of property between the affiliated enterprises, the transfer of funds, the mixing of assets or accounts, and the like, and is not easy to be found by the external creditors. In that event that one or several member of the associate enterprise are in bankruptcy, the bankrupt debtor may have no property for the distribution of the creditor, or the liquidation of the creditors of the bankrupt enterprise is manifestly unfair. Because of the company law, the bankruptcy law, the general civil law and the criminal law, the relevant provisions of the bankruptcy system are mainly applied to the bankruptcy of a single enterprise, and it is difficult to apply to the case of the illegal bankruptcy of the related enterprises. Therefore, it is necessary to draw lessons from other jurisdictions, such as the principle of equity, the principle of substantial merger, the compensation of the control enterprise, the liability of compensation, the joint liability for the benefit of the subordinate enterprises, etc., To construct a complete system of the illegal bankruptcy of the associated enterprises in our country. In this paper, in addition to the leading edge and the epilogue, the main part of this paper is to discuss: The first part, the analysis of the law-breaking form of the affiliated enterprise, this part mainly defines the meaning of the affiliated enterprise, and discusses the internal relation and the exterior of the related enterprise. In the form of case, the paper introduces the macro-forms of the illegal bankruptcy of the related enterprises, and sums up the micro-operation of the enterprise's illegal bankruptcy. The above-mentioned analysis makes us realize that the illegal bankruptcy of the related enterprises is distinct from the bankruptcy of the general enterprise, and the only one The close organization structure is an illegal "create" of the related enterprises. The second part, the present situation and the analysis of the law of the law, the bankruptcy law, the general civil law and the criminal law to the bankruptcy of our country. It also points out that the above-mentioned legal system exists in solving the problem of the illegal bankruptcy of the related enterprises The third part is to perfect the legislative proposal of the law of the illegal bankruptcy of the related enterprises in our country. The part of this part is to put forward the legislative suggestions by comparing and analyzing the system of the illegal bankruptcy of the related enterprises in other jurisdictions, mainly including the introduction of the principle of equity and the real estate. On the basis of the principle of quality and quality, the existing legal personality denial system in China is reformed, the compensation of the control enterprise, the liability of the compensation, and the company's connection with the subordinate enterprises are established.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291;D924;D923
【参考文献】
相关博士学位论文 前3条
1 丁文联;论企业破产程序中的利益平衡[D];对外经济贸易大学;2005年
2 金剑锋;关联公司法律制度研究[D];中国政法大学;2005年
3 孙向齐;关联企业破产法律问题研究[D];中国人民大学;2008年
相关硕士学位论文 前2条
1 叶敏;“深石原则”相关法律问题研究[D];四川大学;2005年
2 江朵;关联企业破产时的实质合并原则研究[D];上海交通大学;2007年
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