个人破产法制之比较研究：现代化改革、运作机理与滥用规制

发布时间：2019-04-21 13:28

【摘要】：本文以比较法之方法对个人破产法制问题进行研究。尽管破产法发源于个人破产制度,但在新的社会与经济条件下,个人破产法制所面临以及需要解决之社会问题已经与其发端之时迥然不同。自二十世纪八十年代以来,在主要市场经济国家出现了对本国个人破产法制进行现代化改革的趋势,其产生之原因即是消费者破产问题随着经济发展与信贷产业壮大而逐步浮出水面。在消费者信用危机出现与个人破产申请陡增的新情况下,以消费者破产法制作为重点的个人破产法制现代化改革被提上了各国议事日程,并逐步付诸实现。但个人破产申请浪潮并不仅仅带来通过破产法制改革以化解消费者信用危机这唯一命题——在“债务人友好型”个人破产立法模式被广为接受之时,如何规制破产程序之滥用问题,成为了在个人破产法制现代化改革中另一个不容忽视的问题。对以美国、德国、日本等主要市场经济发达国家在其个人破产法制现代化改革、运作机理以及其在破产程序滥用规制方面所做出的努力、产生的成果、暴露出的有关问题进行比较研究,分析总结其经验教训,对于我国在未来构建适应国情的个人破产法制体系,具有重要意义。本文考察了美、英、德、日、法等主要市场经济体破产法制现代化改革的历程,并从其产生之社会要素、构建之不同模式以及基本之立法目标与原则,分析了其运作机理。本文发现,重视与鼓励前置之民间和解机制、分割个人破产与团体破产之法制、以程序经济、效率、便捷作为个人破产法制立法目标之一、以债务整理(而非径行清算)程序作为个人破产核心程序进行构建等是上述经济体改革后个人破产法制之共同特色,宜为我国立法者所重视。而在破产程序滥用问题上,本文认为应当重视主观滥用行为与客观滥用现象的存在,根据不同成因进行制度设计进行规制。
[Abstract]:This paper studies the legal system of personal bankruptcy with the method of comparative law. Although the bankruptcy law originated from the personal bankruptcy system, under the new social and economic conditions, the social problems faced and needed to be solved by the individual bankruptcy legal system are quite different from those at the beginning. Since the eighties of the 20th century, there has been a trend of modernizing the legal system of individual bankruptcy in the major market economy countries. The reason is that the problem of consumer bankruptcy gradually surfaced with the development of economy and the expansion of credit industry. With the emergence of consumer credit crisis and the sharp increase of individual bankruptcy applications, the modernization reform of personal bankruptcy legal system, which focuses on consumer bankruptcy law, has been put on the agenda of various countries and implemented gradually. But the wave of individual bankruptcy applications has not only brought about the sole proposition of resolving the consumer credit crisis through bankruptcy legal reform-at a time when the "debtor-friendly" model of personal bankruptcy legislation was widely accepted, How to regulate the abuse of bankruptcy procedure has become another problem which can not be ignored in the reform of individual bankruptcy legal modernization. The achievements of the major market economy developed countries such as the United States, Germany and Japan in the modernization of their individual bankruptcy legal system, their operational mechanism and their efforts to regulate the abuse of bankruptcy procedures, It is of great significance for our country to construct the legal system of individual bankruptcy in the future by comparing and studying the problems exposed and analyzing and summarizing its experiences and lessons. This paper investigates the process of bankruptcy legal modernization reform in the major market economies, such as the United States, Britain, Germany, Japan, France, etc., and analyzes its operation mechanism from the social elements of its emergence, the different models of construction and the basic legislative objectives and principles. It is found in this paper that we should attach importance to and encourage the pre-established civil reconciliation mechanism, divide the legal system of individual bankruptcy from group bankruptcy, and take procedural economy, efficiency and convenience as one of the legislative objectives of individual bankruptcy legal system. It is the common feature of the individual bankruptcy legal system after the reform of the above-mentioned economies to construct the debt consolidation (rather than liquidation) procedure as the core procedure of individual bankruptcy, which should be paid attention to by legislators in our country. On the issue of abuse of bankruptcy procedure, this paper holds that we should pay attention to the existence of subjective abuse and objective abuse, and regulate the system design according to different causes.
【学位授予单位】：上海交通大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.92

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