我国民办高校破产制度研究

发布时间：2018-09-10 06:35

【摘要】：近年来,作为高等教育重要组成部分的民办高校发展迅速,其开办数量持续增长。同时应看到,民办高校高效的退出机制能够强有力地促进高等教育的发展。毋庸置疑,伴随大学适龄人口的下降,部分办学质量薄弱的民办高校将会退出市场。目前,我国《企业破产法》的适用范围仅包括企业法人,且《民办教育促进法》中民办学校的退出机制尚不够完善。相较之下,高等教育发达国家和地区退出机制十分完备。基于此,解决我国民办高校退出的法律问题可借鉴域外的经验。破产性退出是民办高校退出方式的主要内容。本文居于理论和实践的两重维度,分析我国民办高校具有破产能力的依据。理论上,一是民办高校具有法人资格和法人财产权,从而为其适用破产制度提供了必要条件;二是民办高校的公益性决定其应当适用破产预防程序;三是公益性组织的破产应被审慎对待,以实现对公益组织的人文关怀,民办高校也不例外。实践上,笔者通过考察国内外民办高校破产能力的立法概况和我国民办高校破产能力的司法实践情况,得出未来我国的立法趋势是:民办高校拥有广义的破产能力,而不只具有破产清算能力。国际上现代破产法普遍采取一般破产主义,诸如美国、日本等国家的私立高校均具有破产能力。而我国的《企业破产法》采用的是特殊立法主义,仅将企业法人纳入适用范围。但同时,《企业破产法》一百三十五条可为破产清算程序适用的兜底条款,故民办高校的破产清算可以适用企业法人的破产清算程序。《民办教育促进法》规定,因资不抵债而终止办学是民办学校终止情况的一种。“资不抵债”在司法实践中也被认定为民办学校破产清算的原因。另外,民办高校间的合并重组实践已经存在,且不乏实例。以上依据无不佐证,我国民办高校具有实质意义上的破产能力。在肯定民办高校具有破产能力的基础上,本文对民办高校的破产制度进行了初步的构建:首先,对《民办教育促进法》中规定的民办高校的破产原因、破产清算时的清偿顺位进行调整;其次,列明民办高校破产申请主体的范围;再次,针对适用破产预防程序时民办高校不同于一般企业的特殊问题进行具体设计;最后,设计了民办高校破产时学生安置的配套机制,保证学生学业的顺利衔接。在具体构建时,本文认为行政权应当合理介入民办高校的破产程序,和司法权共同保障民办高校破产程序的有序进行。此外,本文指出,有必要强制要求民办高校设立风险保障基金,保证民办高校破产后受教育者学杂费的足额返还。赋予民办高校广义的破产能力,并在此基础上完善民办高校的破产制度,能够促进民办高等教育的良性发展,利于破产或者濒临破产的民办高校积极地适用破产和解及破产重整程序,进而重获新生。
[Abstract]:In recent years, as an important part of higher education, private colleges and universities have developed rapidly, and the number of them has been increasing continuously. At the same time, it should be seen that the efficient withdrawal mechanism of private colleges and universities can strongly promote the development of higher education. Undoubtedly, with the decline of the school-age population, some private colleges with weak quality will withdraw from the market. At present, the scope of application of Enterprise bankruptcy Law in China only includes enterprise legal person, and the withdrawal mechanism of private schools in Private Education Promotion Law is not perfect. By contrast, higher education developed countries and regions to withdraw from the mechanism is very complete. Based on this, we can learn from the foreign experience to solve the legal problem of private colleges and universities withdrawal in our country. Bankrupt exit is the main content of private college exit. This article is based on the double dimensions of theory and practice, and analyzes the basis of bankruptcy ability of private universities in our country. Theoretically, private colleges and universities have the qualification of legal person and the property right of legal person, which provides the necessary conditions for them to apply the bankruptcy system, and the public welfare of private colleges and universities determines that they should apply the bankruptcy prevention procedure. Thirdly, the bankruptcy of public welfare organizations should be treated with caution in order to realize humanistic concern for public welfare organizations, and private colleges and universities are no exception. In practice, the author investigates the legislative situation of the bankruptcy ability of private colleges and universities at home and abroad and the judicial practice of the bankruptcy capacity of private colleges and universities in our country, and draws the conclusion that the legislative trend of our country in the future is that private colleges and universities have broad bankruptcy capacity. Not just bankruptcy liquidation. The international modern bankruptcy law generally adopts the general bankruptcy doctrine, such as the United States, Japan and other countries private colleges and universities have bankruptcy ability. But our country's Enterprise bankruptcy Law adopts the special legislation doctrine, only brings the enterprise legal person into the scope of application. But at the same time, 135 articles of Enterprise bankruptcy Law can be applied to the bankruptcy liquidation procedure, so the bankruptcy liquidation of a private university can be applied to the bankruptcy liquidation procedure of an enterprise legal person. The termination of running a school due to insolvency is one of the conditions in which private schools are terminated. Insolvent debt is also recognized as the cause of bankruptcy and liquidation of private schools in judicial practice. In addition, the practice of merging and reorganizing private colleges and universities already exists, and there are many examples. According to the above evidence, private colleges and universities in China have the ability of bankruptcy in a substantial sense. On the basis of affirming the bankruptcy ability of private colleges and universities, this paper has carried on the preliminary construction to the bankruptcy system of private colleges and universities: first of all, the reasons for bankruptcy of private colleges and universities stipulated in the Law on the Promotion of Private Education, The order of liquidation is adjusted; secondly, the scope of the main body of bankruptcy application in private colleges and universities is listed; thirdly, the special problems of private colleges and universities that are different from ordinary enterprises when the bankruptcy prevention procedure is applied are specifically designed; finally, In order to ensure the smooth convergence of students' studies, this paper designs the matching mechanism of students' placement when private colleges and universities go bankrupt. In the concrete construction, this paper holds that the administrative power should be involved in the bankruptcy procedure of the private colleges and universities reasonably, and the judicial power should jointly ensure the orderly proceeding of the bankruptcy procedure of the private colleges and universities. In addition, this paper points out that it is necessary to force private colleges and universities to set up risk protection funds to ensure the full return of educatees' tuition and miscellaneous expenses after the bankruptcy of private colleges and universities. Giving private colleges and universities the ability to go bankrupt in a broad sense and perfecting the bankruptcy system of private colleges and universities on this basis can promote the benign development of private higher education. Private colleges and universities which are in favor of bankruptcy or near bankruptcy actively apply bankruptcy reconciliation and bankruptcy reorganization procedure, and then regain new students.
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.92

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