破产法上的偏颇性清偿研究
发布时间：2018-11-01 12:38
【摘要】：偏颇性清偿是破产法上特有的概念,在各国破产法中占据着非常重要的地位。目前,我国《破产法》采纳了撤销权制度对偏颇性清偿进行规制,但是对偏颇性清偿的构成要件(尤其是主观要件)、关系人等问题均没有作出具体规定,对偏颇性清偿撤销的例外规定也过于原则,同国外立法相距甚远。破产法司法解释(二)从实践的角度对偏颇性清偿撤销制度进行调整和完善,具有一定的进步意义,然而,对诸如基于公权力的自愿履行或强制履行是否能够撤销等内容,在理论界与实务界仍然存在许多分歧。所以,在当代破产法学视野下,对偏颇性清偿相关理论及制度进行研究就显得尤为重要。全文正文共分为四个部分:第一部分是关于偏颇性清偿的基础理论的阐述。本部分首先从立法和学说两方面入手界定了偏颇性清偿的内涵,进而基于同欺诈性转让的对比来阐明其基本特征,最后探讨了对偏颇性清偿进行规制的正当性。第二部分是关于偏颇性清偿的构成要件的分析。本部分首先在考察各国立法例的基础上,分析、认定偏颇性清偿的主客观构成要件。其次,分析了各国立法针对关系人的特殊规定,包括对关系人的范围界定、两大法系对关系人的特殊规制方式。第三部分是关于偏颇性清偿的法律后果的具体分析。本部分首先论述了偏颇性清偿因不同的破产立法原则而产生的两种不同的法律后果,即无效和可撤销。其次,针对可撤销的法律后果,对其在各国破产法律制度中的一般规则与例外规定进行了对比分析,以明确其和我国立法及实践的相容程度。第四部分是关于我国偏颇性清偿的立法现状与完善。本部分在对立法和司法解释进行梳理的基础上,阐明了我国目前偏颇性清偿规则存在的问题。然后,结合上述各部分的论证,并根据我国的具体情况提出相应的立法完善措施。
[Abstract]:Biased liquidation is a unique concept in bankruptcy law, which occupies a very important position in the bankruptcy law of various countries. At present, the bankruptcy Law of our country has adopted the system of rescission right to regulate the partial liquidation, but it has not made any specific provisions on the constituent elements (especially the subjective elements) of the partial liquidation, the related persons and so on. The exception to the cancellation of biased liquidation is also too principle, far from the foreign legislation. The judicial interpretation of bankruptcy law (2) adjusts and perfects the biased liquidation revocation system from the perspective of practice, which has certain progressive significance. However, it is of great significance to study whether voluntary or compulsory performance based on public power can be revoked or not. There are still many differences between theory and practice. Therefore, in the perspective of modern bankruptcy law, it is particularly important to study the theory and system of biased liquidation. The text is divided into four parts: the first part is about the basic theory of partial liquidation. This part first defines the connotation of biased liquidation from the two aspects of legislation and doctrine, then clarifies its basic characteristics based on the comparison with fraudulent transfer, and finally discusses the legitimacy of the regulation of biased liquidation. The second part is the analysis of the elements of partial liquidation. This part first analyzes the subjective and objective elements of bias settlement on the basis of investigating the legislative cases of various countries. Secondly, it analyzes the special provisions of the relevant parties in the legislation of various countries, including the definition of the scope of the related persons and the special regulation methods of the two legal systems. The third part is the specific analysis of the legal consequences of biased liquidation. This part first discusses two different legal consequences, namely invalidity and revocability, which result from different principles of bankruptcy legislation. Secondly, in view of the legal consequences of revocability, this paper makes a comparative analysis of the general rules and exceptions in the bankruptcy legal systems of various countries in order to clarify their compatibility with the legislation and practice of our country. The fourth part is about the legislation status quo and perfection of our country's biased liquidation. On the basis of combing the legislative and judicial interpretations, this part clarifies the problems existing in the current biased settlement rules in China. Then, combined with the above-mentioned argument, and according to the specific situation of our country, put forward the corresponding legislative improvement measures.
【学位授予单位】：内蒙古大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.92
[Abstract]:Biased liquidation is a unique concept in bankruptcy law, which occupies a very important position in the bankruptcy law of various countries. At present, the bankruptcy Law of our country has adopted the system of rescission right to regulate the partial liquidation, but it has not made any specific provisions on the constituent elements (especially the subjective elements) of the partial liquidation, the related persons and so on. The exception to the cancellation of biased liquidation is also too principle, far from the foreign legislation. The judicial interpretation of bankruptcy law (2) adjusts and perfects the biased liquidation revocation system from the perspective of practice, which has certain progressive significance. However, it is of great significance to study whether voluntary or compulsory performance based on public power can be revoked or not. There are still many differences between theory and practice. Therefore, in the perspective of modern bankruptcy law, it is particularly important to study the theory and system of biased liquidation. The text is divided into four parts: the first part is about the basic theory of partial liquidation. This part first defines the connotation of biased liquidation from the two aspects of legislation and doctrine, then clarifies its basic characteristics based on the comparison with fraudulent transfer, and finally discusses the legitimacy of the regulation of biased liquidation. The second part is the analysis of the elements of partial liquidation. This part first analyzes the subjective and objective elements of bias settlement on the basis of investigating the legislative cases of various countries. Secondly, it analyzes the special provisions of the relevant parties in the legislation of various countries, including the definition of the scope of the related persons and the special regulation methods of the two legal systems. The third part is the specific analysis of the legal consequences of biased liquidation. This part first discusses two different legal consequences, namely invalidity and revocability, which result from different principles of bankruptcy legislation. Secondly, in view of the legal consequences of revocability, this paper makes a comparative analysis of the general rules and exceptions in the bankruptcy legal systems of various countries in order to clarify their compatibility with the legislation and practice of our country. The fourth part is about the legislation status quo and perfection of our country's biased liquidation. On the basis of combing the legislative and judicial interpretations, this part clarifies the problems existing in the current biased settlement rules in China. Then, combined with the above-mentioned argument, and according to the specific situation of our country, put forward the corresponding legislative improvement measures.
【学位授予单位】：内蒙古大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.92
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