我国破产法上可撤销偏颇性清偿行为研究
发布时间：2019-02-16 17:36
【摘要】：不同于破产欺诈行为,破产法上对偏颇性清偿行为的撤销权只能由管理人行使。我国破产法上可撤销偏颇性清偿行为的构成要件均为客观标准,因抗辩事由和例外规则的缺失,在最高人民法院《关于适用中华人民共和国企业破产法若干问题的规定(二)》确立的管理人因未依法行使撤销权而需承担赔偿责任的高压下,管理人在破产实务中将可能滥用撤销权,并将为此深陷利益争夺和正义、公平争议的漩涡。为避免权利纷争影响破产实务推进,并进一步减轻管理人责任负担,我国破产法上可撤销性偏颇性清偿行为有深入研究的必要。合理的偏颇性清偿撤销制度应有利于厘清可撤销偏颇性清偿行为的边界、有利于维护各方主体在程序中的利益预期、有利于平衡债务人和债权人的正当利益并维持正当的交易秩序,减少管理人与其他利益主体的对抗。本文研究的目标,即在于通过研究、分析各国有关规制可撤销偏颇性清偿行为的立法例及有关理论成果,结合管理人破产实务,对我国破产法上的可撤销偏颇性清偿行为及相应撤销制度进行相应剖析,探讨我国破产法在规制可撤销偏颇性清偿行为方面立法的缺陷、不足及改进方向,为此后破产法第31条、第32条的修改完善或基于破产法立法目的的司法解释提供参考。从明晰可撤销偏颇性清偿行为构成要件,消除制度模糊,增益制度社会效益等角度出发,基于个别正义和社会效益的考量,本文借鉴域外立法例,立足我国破产实务,提出关于完善我国破产法上可撤销偏颇性行为一般构成要件及例外事项的一些建议。本文认为应明确“债务人处于无力清偿状态”在可撤销偏颇性清偿行为一般构成要件中的核心地位,并提出了相应的认定办法;本文认为可撤销偏颇性清偿行为一般构成要件中应增加当事人恶意这一可责性要件,同时从观念主义出发明确主观恶意的判断标准;关系人为可撤销偏颇性清偿行为中的特殊主体,本文认为应给予特别规制并提出了相应办法。对实践中形式上具有可撤销偏颇性一般构成要件,而不宜撤销的行为,本文建议以例外形式相应明确;本文借鉴美国破产法立法例及中国国情,认为同时交易、惯常交易、后位新价值、基本生存利益等事项可作为例外事项。另外,本文还认为破产法司法解释(二)规定的基于生效法律文书的自动履行和执行行为的被动履行也应相应修正。
[Abstract]:Different from bankruptcy fraud, the revocation right of biased liquidation in bankruptcy law can only be exercised by the administrator. The constitutive requirements of revocable bias in our bankruptcy law are all objective standards, because of the defenses and the absence of exception rules. Under the pressure of the administrator established by the Supreme people's Court [on the application of certain problems of the enterprise bankruptcy law of the people's Republic of China (2) > who has not exercised the right of rescission according to law to bear the liability for compensation, The administrator will abuse the right of rescission in bankruptcy practice, and will be caught in the whirlpool of interests, justice and fairness. In order to prevent disputes of rights from affecting bankruptcy practice and further lighten the burden of administrator's liability, it is necessary to further study the reversible biased liquidation behavior in China's bankruptcy law. A reasonable system of partial liquidation should be helpful to clarify the boundary of the voided biased liquidation, and to safeguard the interests expectation of the parties in the procedure. It is beneficial to balance the legitimate interests of debtor and creditor, to maintain proper transaction order and to reduce the confrontation between administrator and other stakeholders. The purpose of this paper is to analyze the legislative cases and related theoretical achievements of regulating annulable biased liquidation in various countries, and combine with the practice of administrator bankruptcy. This paper makes a corresponding analysis of the revocable biased liquidation behavior and the corresponding revocation system in the bankruptcy law of our country, and probes into the defects, deficiencies and improvement directions of the legislation on the regulation of the revocable biased liquidation behavior in the bankruptcy law of our country. It provides a reference for the revision and perfection of Article 31 and Article 32 or the judicial interpretation based on the legislative purpose of bankruptcy Law. Based on the consideration of individual justice and social benefit, this paper bases on the bankruptcy practice of our country, based on the consideration of individual justice and social benefit, from the angle of clarifying the constitutive elements of revocable biased liquidation behavior, eliminating the system ambiguity and increasing the social benefit of the system. This paper puts forward some suggestions on perfecting the general constitutive elements and exceptions of the revocable biased sexual act in the bankruptcy law of our country. In this paper, we should make clear the core position of "the debtor is in the state of insolvency" in the general constitutive elements of the revocable biased liquidation behavior, and put forward the corresponding identification methods. This paper holds that the general constitutive elements of revocable biased liquidation should increase the responsibility of the parties' malice, and at the same time make clear the subjective and malicious judgment criteria from the viewpoint of idealism. The related party is a special subject in the behavior of revocable bias. This paper holds that special regulation should be given and some corresponding measures are put forward. In practice, it is suggested that the exception form should be used to clarify the behavior which has the general constitutive elements of revocable bias, but is not suitable for revocation. This paper draws lessons from the legislation of American bankruptcy law and the national conditions of China, and thinks that such matters as simultaneous transaction, customary transaction, new value in the later position, basic survival interest and so on can be regarded as exceptional matters. In addition, this paper also holds that the automatic performance based on the effective legal instrument and the passive performance of the enforcement act should also be amended accordingly in the judicial interpretation of bankruptcy law (2).
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.291.92
[Abstract]:Different from bankruptcy fraud, the revocation right of biased liquidation in bankruptcy law can only be exercised by the administrator. The constitutive requirements of revocable bias in our bankruptcy law are all objective standards, because of the defenses and the absence of exception rules. Under the pressure of the administrator established by the Supreme people's Court [on the application of certain problems of the enterprise bankruptcy law of the people's Republic of China (2) > who has not exercised the right of rescission according to law to bear the liability for compensation, The administrator will abuse the right of rescission in bankruptcy practice, and will be caught in the whirlpool of interests, justice and fairness. In order to prevent disputes of rights from affecting bankruptcy practice and further lighten the burden of administrator's liability, it is necessary to further study the reversible biased liquidation behavior in China's bankruptcy law. A reasonable system of partial liquidation should be helpful to clarify the boundary of the voided biased liquidation, and to safeguard the interests expectation of the parties in the procedure. It is beneficial to balance the legitimate interests of debtor and creditor, to maintain proper transaction order and to reduce the confrontation between administrator and other stakeholders. The purpose of this paper is to analyze the legislative cases and related theoretical achievements of regulating annulable biased liquidation in various countries, and combine with the practice of administrator bankruptcy. This paper makes a corresponding analysis of the revocable biased liquidation behavior and the corresponding revocation system in the bankruptcy law of our country, and probes into the defects, deficiencies and improvement directions of the legislation on the regulation of the revocable biased liquidation behavior in the bankruptcy law of our country. It provides a reference for the revision and perfection of Article 31 and Article 32 or the judicial interpretation based on the legislative purpose of bankruptcy Law. Based on the consideration of individual justice and social benefit, this paper bases on the bankruptcy practice of our country, based on the consideration of individual justice and social benefit, from the angle of clarifying the constitutive elements of revocable biased liquidation behavior, eliminating the system ambiguity and increasing the social benefit of the system. This paper puts forward some suggestions on perfecting the general constitutive elements and exceptions of the revocable biased sexual act in the bankruptcy law of our country. In this paper, we should make clear the core position of "the debtor is in the state of insolvency" in the general constitutive elements of the revocable biased liquidation behavior, and put forward the corresponding identification methods. This paper holds that the general constitutive elements of revocable biased liquidation should increase the responsibility of the parties' malice, and at the same time make clear the subjective and malicious judgment criteria from the viewpoint of idealism. The related party is a special subject in the behavior of revocable bias. This paper holds that special regulation should be given and some corresponding measures are put forward. In practice, it is suggested that the exception form should be used to clarify the behavior which has the general constitutive elements of revocable bias, but is not suitable for revocation. This paper draws lessons from the legislation of American bankruptcy law and the national conditions of China, and thinks that such matters as simultaneous transaction, customary transaction, new value in the later position, basic survival interest and so on can be regarded as exceptional matters. In addition, this paper also holds that the automatic performance based on the effective legal instrument and the passive performance of the enforcement act should also be amended accordingly in the judicial interpretation of bankruptcy law (2).
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.291.92
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