破产公司环境债权人利益保护研究
发布时间：2018-12-15 20:23
【摘要】：对债权人实行破产保护,是破产法的立法动因,也是破产法立法价值的基础所在。在破产程序中,环境债权人是一类特殊的债权人,无论是与破产公司相比还是与其它债权人相比,他们都处于弱势地位。目前我国对破产公司环境债权人利益保护法律体系还很不完善,环境债权人的利益被损害的现象时有发生,许多公司在破产时根本无法承担巨额的环境债务,他们常利用法律的漏洞,通过申请破产清算、注销法人资格等方式来逃避法律责任。加强对破产公司环境债权人利益的保护既是实现债权人公平清偿的需要,同时也是维护社会稳定、实现社会可持续发展的需要。 论文从理论基础和实践经验层面探索了破产公司环境债权人利益保护的问题。在具体分析破产公司环境债权人的基本问题、破产公司环境债权人利益保护理论基础的前提下,介绍了国外破产公司环境债权人利益保护的经验,并对我国破产公司环境债权人利益的保护提出了完善的建议。论文从以下四个部分进行论述: 第一部分是对破产公司环境债权人的基本问题的阐释。环境债权人是破产公司中的一类特殊的债权人,本部分首先通过对破产公司环境债权人内涵、地位以及特征的介绍,分析了环境债权人的特殊性。其次,总结了破产公司债权人利益保护的历史沿革,提出加强对环境债权人利益保护是顺应时代发展潮流、实现社会可持续发展的需要。 第二部分是对破产公司环境债权人利益保护理论基础的分析。首先,从法学理论基础的角度上讲,它符合法理学上的公平正义价值和利益价值,体现了环境法中的环境责任原则和环境优先原则,顺应了商事立法生态化的发展趋势。其次,从伦理学角度上讲,它既是我国古代朴素的环境伦理观的传承,又是马克思主义环境伦理思想的发扬,同时也是可持续发展伦理观念的体现。再次,从经济学角度上讲,它是环境产权理论的运用,有利于各利益主体在博弈中实现纳什均衡。 第三部分是对破产公司环境债权人利益保护的境外考察。关于破产公司环境债权人利益的保护,美国、日本、加拿大等国家已有一些涉及。本部分首先从了国外立法与司法实践两个层面对破产过程中环境债权的认定标准与清偿顺序作了介绍。其次,对破产公司终止后环境债权人利益保护的方式进行了归纳,总体来讲,国外主要通过扩大环境责任主体范围、建立环境基金以及实行环境责任保险等方式加强对公司终止后环境债权人利益的保护。再次,对关联公司破产时环境债权人利益保护的特殊规定进行了介绍。通过对上述几方面的介绍,以期为我国破产公司环境债权人利益的保护提供启示和经验。 第四部分是针对我国破产公司环境债权人利益保护中存在的问题提出了相应的解决对策。在破产清偿顺序方面,对于破产申请受理前的环境债权,其中人身侵权之债应置于破产费用和共益债务之后、劳动债权之前进行清偿,但是其中的精神损害赔偿部分应作为普通债权进行清偿;对于财产侵权之债,应该在其它普通债权之前清偿。对于破产申请后产生的环境清理费用,若它是管理、变价和分配债务人财产所必需的,可以作为破产费用来看待,否则应将其按照普通债权的清偿顺序进行清偿;同时,我国还应引入关于劣后债权的规定,给予环境债权人因参加破产程序支付的费用等产生债权以受偿的机会。另外,随着资本全球化的进一步发展,关联公司迅速崛起,关联公司在繁荣我国经济的同时也给我国环境债权人利益的保护带来了潜在的威胁,为防止控制公司损害环境债权人的利益,应引入控制公司债权居次原则,加强对从属公司环境债权人利益的保护。在破产公司终止后环境债权人利益保护方面,我国可借鉴国外做法,通过有限责任理论的修正、破产财产分配制度的重构、环境责任保险制度的完善以及环境责任基金制度的设立等方式加强对环境债权人利益的保护。
[Abstract]:The bankruptcy protection of the creditor is the legislative motivation of the bankruptcy law and the foundation of the legislative value of the bankruptcy law. In the insolvency proceedings, the environmental creditor is a class of special creditors, both in a vulnerable position, either in comparison to an insolvency company or with other creditors. At present, the legal system for protecting the interests of the environmental creditors of the bankrupt company is still not perfect, the interests of the environmental creditors are damaged, many companies can't bear huge environmental debts at the time of the bankruptcy, they often use the loopholes of the law, and through the application for bankruptcy liquidation, The legal liability shall be avoided in such a way as to cancel the legal person's legal person. To strengthen the protection of the interests of the creditors of the environment of the bankrupt company is not only the need for the fair settlement of the creditors, but also the need of maintaining the social stability and realizing the sustainable development of the society. On the basis of the theory and the practical experience, the paper explores the protection of the interests of the creditors of the environment of the bankruptcy company. On the premise of analyzing the basic problems of the environmental creditors of the bankruptcy company and the theory of the protection of the interests of the creditors in the bankruptcy company, the article introduces the protection of the interests of the environmental creditors of the foreign bankrupt companies. Experience, and put forward the perfection of the protection of the interests of the environmental creditor of the bankruptcy company of our country It is recommended that the paper be taken from the following four parts The first part is the basic of the environmental creditor of the bankrupt company. The interpretation of the problem is that the environmental creditor is a kind of special creditor in the bankrupt company. This part first analyzes the environmental creditor's right by introducing the connotation, position and characteristic of the bankruptcy company's environment creditor. Secondly, the history of the protection of the creditor's interests of the bankrupt company is summarized, and it is proposed that the protection of the interests of the environment's creditors is the trend of the development of the time and the society is sustainable. The second part is to protect the interests of the creditors of the environment of the bankrupt company. First, from the angle of the theory of law, it is in accordance with the value of the equity and justice in the jurisprudence and the value of the interest, which embodies the environmental responsibility principle and the environmental priority principle in the environmental law, and conforms to the commercial legislation. Secondly, from the angle of ethics, it is not only the inheritance of the environmental ethics in ancient China, but also the development of the ethical thought of Marxism, and it is also the sustainable development. Again, from the perspective of economics, it is the application of the theory of environmental property right, which is beneficial to the main body of interest. Nash equilibrium is realized in the system. The third part is the environmental debt of the bankrupt company. An overseas investigation of the protection of the interests of the right person. The protection of the interests of the creditors of the environment of the bankruptcy company, the United States, Japan and the Republic of China In this part, the author first from the two aspects of foreign legislation and judicial practice to the determination of the environmental creditor's right in the process of bankruptcy The paper introduces the standard and the order of satisfaction. Secondly, the author sums up the way of protecting the interests of the creditors after the end of the bankruptcy company. In general, the foreign countries strengthen the termination of the company by expanding the scope of the main body of the environmental responsibility, establishing the environment fund and implementing the environmental liability insurance. The protection of the interests of the creditors of the latter environment. The special regulations of the protection are introduced in this paper. Through the introduction of the above-mentioned aspects, the author hopes to benefit the environmental creditors of China's bankrupt companies. The fourth part is for the protection of the interests of the environmental creditor of the bankruptcy company of our country. The corresponding solution to the problem is put forward in this paper. In the aspect of the bankruptcy liquidation, the right to the environment before the application of the bankruptcy application, in which the debt of the person's tort should be placed before the bankruptcy and the debt-benefit, the debt should be paid off before the right of labor, but the moral damage in it should be lost. The indemnity shall be paid off as an ordinary creditor's right; the debt to the property infringement If it is necessary for the management, price change and distribution of the property of the debtor, it shall be treated as the bankruptcy cost, otherwise it shall be paid off according to the settlement order of the ordinary creditor's right; and at the same time, I The State shall also introduce a provision on the post-degradation claim, giving the environmental creditor the right to pay for the participation in the insolvency proceedings In addition, with the further development of the capital globalization and the rapid rise of the related companies, the related companies have brought a potential threat to the protection of the interests of the environmental creditors in our country, in order to prevent In order to control the interests of the environmental creditors of the Company, the principle of controlling the creditor's rights of the Company shall be introduced, and the right to be strengthened The protection of the interests of the environmental creditors of the subordinate companies. In the area of the protection of the interests of the creditors of the environment after the termination of the bankruptcy company, our country can draw on the foreign practice and adopt the limited liability theory. The reconstruction of the distribution system of the bankruptcy property, the perfection of the environmental liability insurance system and the establishment of the system of the environmental responsibility fund
【学位授予单位】：山东师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D912.29;D912.6
本文编号：2381234
[Abstract]:The bankruptcy protection of the creditor is the legislative motivation of the bankruptcy law and the foundation of the legislative value of the bankruptcy law. In the insolvency proceedings, the environmental creditor is a class of special creditors, both in a vulnerable position, either in comparison to an insolvency company or with other creditors. At present, the legal system for protecting the interests of the environmental creditors of the bankrupt company is still not perfect, the interests of the environmental creditors are damaged, many companies can't bear huge environmental debts at the time of the bankruptcy, they often use the loopholes of the law, and through the application for bankruptcy liquidation, The legal liability shall be avoided in such a way as to cancel the legal person's legal person. To strengthen the protection of the interests of the creditors of the environment of the bankrupt company is not only the need for the fair settlement of the creditors, but also the need of maintaining the social stability and realizing the sustainable development of the society. On the basis of the theory and the practical experience, the paper explores the protection of the interests of the creditors of the environment of the bankruptcy company. On the premise of analyzing the basic problems of the environmental creditors of the bankruptcy company and the theory of the protection of the interests of the creditors in the bankruptcy company, the article introduces the protection of the interests of the environmental creditors of the foreign bankrupt companies. Experience, and put forward the perfection of the protection of the interests of the environmental creditor of the bankruptcy company of our country It is recommended that the paper be taken from the following four parts The first part is the basic of the environmental creditor of the bankrupt company. The interpretation of the problem is that the environmental creditor is a kind of special creditor in the bankrupt company. This part first analyzes the environmental creditor's right by introducing the connotation, position and characteristic of the bankruptcy company's environment creditor. Secondly, the history of the protection of the creditor's interests of the bankrupt company is summarized, and it is proposed that the protection of the interests of the environment's creditors is the trend of the development of the time and the society is sustainable. The second part is to protect the interests of the creditors of the environment of the bankrupt company. First, from the angle of the theory of law, it is in accordance with the value of the equity and justice in the jurisprudence and the value of the interest, which embodies the environmental responsibility principle and the environmental priority principle in the environmental law, and conforms to the commercial legislation. Secondly, from the angle of ethics, it is not only the inheritance of the environmental ethics in ancient China, but also the development of the ethical thought of Marxism, and it is also the sustainable development. Again, from the perspective of economics, it is the application of the theory of environmental property right, which is beneficial to the main body of interest. Nash equilibrium is realized in the system. The third part is the environmental debt of the bankrupt company. An overseas investigation of the protection of the interests of the right person. The protection of the interests of the creditors of the environment of the bankruptcy company, the United States, Japan and the Republic of China In this part, the author first from the two aspects of foreign legislation and judicial practice to the determination of the environmental creditor's right in the process of bankruptcy The paper introduces the standard and the order of satisfaction. Secondly, the author sums up the way of protecting the interests of the creditors after the end of the bankruptcy company. In general, the foreign countries strengthen the termination of the company by expanding the scope of the main body of the environmental responsibility, establishing the environment fund and implementing the environmental liability insurance. The protection of the interests of the creditors of the latter environment. The special regulations of the protection are introduced in this paper. Through the introduction of the above-mentioned aspects, the author hopes to benefit the environmental creditors of China's bankrupt companies. The fourth part is for the protection of the interests of the environmental creditor of the bankruptcy company of our country. The corresponding solution to the problem is put forward in this paper. In the aspect of the bankruptcy liquidation, the right to the environment before the application of the bankruptcy application, in which the debt of the person's tort should be placed before the bankruptcy and the debt-benefit, the debt should be paid off before the right of labor, but the moral damage in it should be lost. The indemnity shall be paid off as an ordinary creditor's right; the debt to the property infringement If it is necessary for the management, price change and distribution of the property of the debtor, it shall be treated as the bankruptcy cost, otherwise it shall be paid off according to the settlement order of the ordinary creditor's right; and at the same time, I The State shall also introduce a provision on the post-degradation claim, giving the environmental creditor the right to pay for the participation in the insolvency proceedings In addition, with the further development of the capital globalization and the rapid rise of the related companies, the related companies have brought a potential threat to the protection of the interests of the environmental creditors in our country, in order to prevent In order to control the interests of the environmental creditors of the Company, the principle of controlling the creditor's rights of the Company shall be introduced, and the right to be strengthened The protection of the interests of the environmental creditors of the subordinate companies. In the area of the protection of the interests of the creditors of the environment after the termination of the bankruptcy company, our country can draw on the foreign practice and adopt the limited liability theory. The reconstruction of the distribution system of the bankruptcy property, the perfection of the environmental liability insurance system and the establishment of the system of the environmental responsibility fund
【学位授予单位】：山东师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D912.29;D912.6
【引证文献】
相关硕士学位论文 前1条
1 青青;重大环境污染事故受害人救济途径的案例分析[D];兰州大学;2013年
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