“营业”的破产法意义——兼论对我国《企业破产法》的完善建议

The Meaning of “Business” and its Significance in Bankruptcy Law: Suggestions on Improving the Enterprise Bankruptcy Law

我国《企业破产法》多次使用"营业"概念,但无一般条款界定其含义,影响了规则的适用。根据商法一般理论,"营业"既指营业活动,也指营业结构,两相互动,使其整体价值通常高于各项元素价值的加总。这一特点在破产程序中表现为,营业的继续经营价值往往高于清算价值,整体变卖价值往往高于分拆变卖价值,因而清算过程中的营业整体转让和以营业为拯救对象的转让型重整日益受到破产理论和实务界的重视。两个机制的共性大于差异,核心都是作为整体的营业的转让,但当此交易以破产程序为背景时,又呼唤特殊的适用规则。我国商事一般性法律的缺失使破产法成为对"营业"及其转让做出基本规范的合适场所,在修订破产法时不妨进行这样的尝试。

The Enterprise Bankruptcy Law has used the concept of"business"several times,but there is no general clause to define its meaning,which affects the application of relevant rules.According to the general theory of commercial law,"business"may refer to either business activities or business structure.The two aspects interact with each other,so that the overall value of the business is usually higher than the sum of the values of its various elements.This characteristic of business is manifested in the bankruptcy procedure as that the continued operation value of business is often higher than its liquidation value,and the overall sale value is often higher than the split sale value.Therefore,the overall transfer of the business during the liquidation process and reorganization process is increasingly being discussed by bankruptcy law scholars and practitioners.Whether in the liquidation process or in the reorganization process,the focus is on the transfer of business as a whole,but when the transaction occurs in the context of the bankruptcy procedure,it also calls for special applicable rules different from the business transfer under normal circumstances.The lack of commercial code or general principles of commercial law makes the bankruptcy law a suitable place for basic regulation of"business"and its transfer.We may wish to make such an attempt when revising the bankruptcy law.