民国时期破产规范在实践中的表达——以商会个案裁断为视角

The Bankruptcy Regulations in Practice in Times of the Republic of China

近代中国第一部破产正式立法为清政府1906年颁行的《破产律》,由于官商利益冲突及该律在执行中遇到的阻滞,其于光绪三十三年十月被废止。中华民国成立后至南京国民政府1935年7月公布《破产法》之前,我国在破产领域始终没有正式有效的制定法,遇有破产案件,只能依据惯例或法理裁判。此时期作为裁断机构之一的商会发挥了重要功能,但通过对地方商会有关破产纠纷的个案考察分析,可以发现商会对破产案件的裁断也存在难以克服的缺陷。

Modern China＇ s first formal legislation on bankruptcy was the ＂Bankruptcy Law＂ enacted in 1906 by the Qing government. However, because of interests conflict between the government and the businessmen, and the difficulties encountered in the implementation of the law, it was abolished in October of Guangxu33year. Thus, in the time between the founding of the Republic of China and July, 1935 when the Bankruptcy law was issued by the Nangjing government, there was not any formal effective law in the bankruptcy field. And bankruptcy cases in this period were usually handled on the basis of usual practice or principle of law. The chamber of commerce, as one of the arbitral institutions, played an important function in it. But investigation and analysis of the related disputes arbitrated by the local chamber of commerce show that this organization had inherent limitations in addressing bankruptcy cases.