从负债应偿到破产免责:破产债务清偿责任衍进的中国法律史叙事

From the Principle of No Obligation Exemption for Bankruptcy to Debt Exemption for Bankruptcy:Historical Development of Chinese Debt Repayment Obligation for Bankruptcy

中国固有法对于债务清偿不能之法律调整,主要有以下二端:其一,以刑逼债,或对债务人科以刑事责任;其二,由债务人成年家属承担连带偿还责任。逊清之季,受华洋破产债务诉讼之促动,遂有《大清破产律》之制订。该律一度确立了破产免责原则,但旋被废止。民初大理院涉及破产之判决例和解释例,虽部分继受《大清破产律》之精神,但仍秉承中国传统之债务清偿习惯,固守破产不免责主义。迨至南京国民政府时期1935年之《破产法》,最终在法律文本层面再次确立了破产免责原则。回溯中国法律史上破产债务清偿责任衍进之脉络,可以发现,固有法中负债应偿的债务清偿理念,与域外继受而来的破产免责制度,在近代中国一直处于一种胶合对峙状态。

There were mainly two kinds of intrinsic legal means for insolvency in accident China:one was through using inquisition through torture to force the debtors for repayment or inflicting penalty on the debtors;the second mean was to force the adult relatives of the debtors to bear the joint repayment obligations.In the late Qing dynasty,promoted by bankruptcy litigation movement propelled by western countries and China,late Qing dynasty forthwith made 'Bankruptcy Law of Qing'.The law established principle of debt exemption for bankruptcy for a time but was soon abolished.In early Republic of China,the Supreme Court made judicial decisions and interpretations partly inheriting the spirit of ' Bankruptcy Law of Qing',but still preserving the traditional custom of repayment of debt adhered to the principle of with no obligation exemption for bankruptcy.In the Nanjing National Government period,the 'Bankruptcy Law of the Republic of China' in 1935 finally established principle of debt exemption for bankruptcy again.In retrospect of how the principle of bankruptcy debt repayment obligation has developed in Chinese legal history,we noticed that the intrinsic custom of repayment of debt in China and principle of debt exemption for bankruptcy were in conflict and mixed with each other all the time.