商合伙破产程序与实体问题研究

Research on the Bankruptcy Procedure and Essence of Commercial Partnership

正在修订中的我国新《破产法》将赋予商合伙破产能力,其原因在于对破产性质的正确认识,对商合伙民事主体资格、民事诉讼资格的肯认;商合伙破产原因应引入"停止支付"概念,并严格区分合伙与合伙人、合伙财产与合伙人财产;为落实合伙人对合伙债务的无限责任,合伙破产可能导致合伙人连带破产,但应允许合伙人在提供财产以清偿合伙债务后免除连带破产,并应尊重合伙人是否继续保持合伙的意愿;在合伙破产案件受理后应对合伙人财产采取一定破产保全措施,并应确立破产程序中平等保护合伙人债权人的制度与原则。

The revised Bankruptcy Law will endow bankruptcy qualification to commercial partnership, based upon proper acknowledgement to the nature of bankruptcy, the civil subject qualification and litigating qualification of commercial partnership. The count for bankruptcy of commercial partnership should lead into the concept of 'stop payment', while the law should strictly distinguish partners and partnership, property of partners and property of partnership. To ensure that partners undertake the unlimited liability to the debt of partnership,bankruptcy of partnership may result in joint bankruptcy of partners. Partners should not be exempted from joint bankruptcy unless they have provided their property to pay the debt of partnership. Partners' willing whether or not to go on their partnership should be respected. After the case of partnership bankruptcy is accepted,necessary insuring measures should be taken upon the properties of partners. What's more,rules should be established to equally protect the partners and creditors during the proceeding of bankruptcy cases.