论我国破产原因之完善

The Improvement of the Reasons for the Bankruptcy

破产清算对一国社会和经济具有重要意义。对债权人而言,破产清算是债权受偿的最后机会;对债务人而言,破产清算意味着诸多权利与资格的限制,甚至主体资格的丧失;对社会而言,破产清算不仅关系到交易安全,还关系到社会经济秩序乃至社会利益。因此,破产清算程序的启动务必恰当——应把握合适的时机,具备正当的理由,兼顾债权人利益、债务人利益、社会利益——破产原因正是实现这一目的主要机制。我国《企业破产法》将破产原因规定为"企业法人不能清偿到期债务,并且资产不足以清偿全部债务或者明显缺乏清偿能力"。此种复合型结合的破产原因立法体例在理论与实践中存在诸多问题,严重影响了破产清算程序的正常启动及运行。

Liquidation is significant to a country＇s society and economics. Liquidation is the last chance for debt repayment;against the debtor, bankruptcy and liquidation means a lot of restrictions on rights and qualifications, and even the loss of the qualification ; for society, the liquidation not only related to security of the transaction but also related to the social and economic order as well as social benefits. Therefore, the bankruptcy liquidation procedure must be appropriate to start-should grasp the right time, with good reason, taking into account the interests of creditors, the debtor interests, the interests of society-it is the main purpose of the reason for bankrupt. China＇ s ＂Bank- ruptcy Law＂ defines bankruptcy as ＂enterprise legal person is unable to repay maturing debt, and assets are insuffi- cient to pay off all the debt or the apparent lack of liquidity. ＂Within the bankruptcy of such a complex combination of reasons for legislative system in theory and practice, there are many problems, which has seriously affected the normal bankruptcy liquidation system.