我国清算与破产审判庭的设置与运转

发布时间：2018-12-27 09:24

【摘要】：最高人民法院在全国范围内设立清算与破产庭的努力方兴未艾,而破产司法体制改革中相关的一些关键问题亟待厘清:就破产审判庭的设置而言,最合适的模式是采纳独立专门审判庭与独立综合审判庭相结合的模式。清算与破产庭的管辖问题取决于很多因素,很难一刀切,既与相关司法辖区内的破产案件数量有关,更与经济发展水平、法官数量等外部因素息息相关,最高人民法院在相关制度设计中,可以适当赋予地方法院更多的自主权,或者明确由各设置清算与破产庭的中级人民法院来决定是否进一步授权基层人民法院管辖企业破产案件。破产案件的审判监督机制事关全局,尤其涉及破产司法腐败的预防,在有更好方案前,深圳中院破产庭的审限监督机制,可以在全国范围内推广。至于破产案件是否适用立案登记制,最高人民法院近期明确立案登记制适用于破产案件,该做法值得赞赏。就破产庭法官的遴选而言,在《企业破产法》《法官法》及《人民法院组织法》修订之前,最高人民法院应该通过司法解释的方式,明确清算与破产庭法官的基本条件;考虑到破产案件审理对法官综合司法素质的要求,除了法官的基本资格外,破产法官应该具备民商经济法硕士研究生以上的教育背景,年满40周岁或从事司法工作十年以上,同时适当吸纳有经验的破产执业律师应聘法官职位。
[Abstract]:The efforts of the Supreme people's Court to set up liquidation and bankruptcy courts throughout the country are in the ascendant, and some key issues related to the reform of the bankruptcy judicial system need to be clarified: as far as the establishment of bankruptcy courts is concerned, The most suitable model is to adopt the model of the combination of the independent specialized division and the independent comprehensive court. The jurisdiction of liquidation and bankruptcy courts depends on many factors and is difficult to cut across the board. It is not only related to the number of bankruptcy cases in the relevant jurisdictions, but also to external factors such as the level of economic development and the number of judges. In the design of relevant systems, the Supreme people's Court may, as appropriate, grant more autonomy to the local courts. Or it is clear that the intermediate people's courts that set up liquidation and bankruptcy courts should decide whether to further authorize the grassroots people's courts to administer bankruptcy cases of enterprises. The trial supervision mechanism of bankruptcy cases is related to the whole situation, especially to the prevention of corruption in bankruptcy judicature. Before there is a better plan, the supervision mechanism of the bankruptcy division of Shenzhen Intermediate people's Court can be popularized throughout the country. As to whether the bankruptcy case registration system is applicable, the Supreme people's Court has recently made it clear that the filing registration system is applicable to the bankruptcy case, which is commendable. As far as the selection of judges in bankruptcy court is concerned, before the revision of the Law on judges of the bankruptcy Law and the Organization Law of the people's Court, the Supreme people's Court should make clear the basic conditions of the judges of liquidation and bankruptcy court by means of judicial interpretation. Considering the requirements for the comprehensive judicial quality of judges in bankruptcy cases, in addition to the basic qualifications of judges, bankruptcy judges should have an educational background of at least a master's degree in civil and commercial economic law, have reached the age of 40 years or have been engaged in judicial work for more than 10 years, At the same time, appropriate admission of experienced bankruptcy lawyers apply for the position of judge.
【作者单位】：中国政法大学《中国政法大学学报》编辑部;
【分类号】：D922.291.92

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