执行案件移送破产审查制度的法经济学探索——基于上海法院“执转破”运行态势之实证考察

Legal and Economic Exploration on the System of Transferring Cases to Bankruptcy Review——An Empirical Study Based on the Operation Situation of Shanghai City Court

上海法院自2017年5月实施执转破以来,至2020年12月,仍存在启动频率低、实施效果有限、申请主体单一、审理周期过长、运转强制不足等问题。主要原因在于,制度层面,上位法限制令执转破功能发挥尚不理想,程序构造差异导致破产与执行“繁简”分野;主观层面,被执行人申请执转破动力缺乏,申请执行人申请执转破效益不高,破产管理人执行职务收支难抵,法院实施执转破的能动性尚需提升。从法经济学角度考察执转破制度,可构建两个观察模型,即法官办案成本曲线和法官办案效益方程组。以法院(法官)为优化执转破的中心环节探索其司法治理之最优解,即在破产立法上引入职权主义的启动模式,应对理性上努力提升执转破当事人的参与积极性,机制创新上推进破产案件简化审和激发破产管理人积极性,工作激励上建立科学可量化的法官绩效考核体系,组织架构上探索执行与破产程序集中处理机制。

It is an important measure to optimize judicial governance to serve and safeguard the construction of business environment by integrating the resolution of the execution backlog and the promotion of bankruptcy application.From May 2017 to December 2020,more than three years after the implementation of the execution of the Shanghai court,the implementation effect is still far from the top-level design original intention of pushing“unable to execute”cases into bankruptcy proceedings.It can be seen from the judicial data that the implementation of execution and breaking by Shanghai courts mainly has problems such as low start-up frequency,limited implementation effect,single application subject,too long trial cycle and insufficient operation compulsion.It is mainly influenced by the system structure and subjective psychology that the operation state of execution is not optimal.At the system level,the upper level law restricts the function of execution of execution is not ideal,and the difference of program structure leads to the separation between bankruptcy and execution.At the subjective level,the person subject to execution lacks the power to apply for conversion and destruction,the application for execution is not effective,the bankruptcy administrator’s income and expenditure in the execution of duties are difficult to meet,and the court’s initiative in the implementation of conversion and destruction still needs to be improved.From the perspective of law and economics,two observation models can be constructed:the cost curve of judge handling cases and the system of benefit equations of judge handling cases.Starting from the two models,the court(judge)is taken as the central link to optimize the mechanism of enforcement and breaking,and the optimal solution of judicial governance of enforcement and breaking is explored from the perspective of law and economics:Bankruptcy legislation,the functions and powers doctrine startup mode is introduced in tackling the problems of rational promote turn of the participation of the parties,the simplified mechanism innovation and promote bankruptcy case review and the bankruptcy administrator system innovation,work motivation on setting up the performance appraisal system,scientific quantifiable structure exploration on execution and centralized processing mechanism of bankruptcy proceedings.