法理与习惯支配下的民间破产程序——以民初商事公断处处理破产案件为例

The Civil Procedure of Bankruptcy Ruled by the Jurisprudence and Customs --take the Handling Bankruptcy Cases of the Business Arbitration Department in the Early Republic of China

商事公断处是民初附设于商会的仲裁机构。现有的资料显示京师、上海、苏州等商事公断处处理了大量的民事案件，其中一部分是破产案件。在民初破产法缺失的情况下，商事公断处实行了“以昭平允”原则下的均分破产财产制与抵押权优先有限受偿制、“抵消债款全额”的破产免责制度，并运用了诸如京师的铺底权、房租的加倍或加成补偿和优先受偿、洋债先偿等诸多商业惯例，显示民初法理与习惯支配下的民间破产程序的特点。通过对商事公断处处理破产案件的研究，我们既看到了西法东渐的过程中，西方法律制度的强行植入对中国商人的影响，也感受到了以个案公平、情理结合原则为指导的本土习惯法的优势。一些破产案例的处理过程即使对今天的司法实践仍然具有很深刻的指导意义。

The Business Arbitration Department is an arbitration institution attached to the chamber of commerce in the early Republic of China. The existing historical materials showed that the Beijing, Shanghai, Suzhou and other commercial arbitration bureau dealt with a large number of civil cases, part of which was the bankruptcy case. Under the condition of the lack of bankruptcy law, The Business Arbitration Department implemented the following system, such as the sharing of bankruptcy property under the principle of fairness, Priority limited compensation system of mortgage right, extract litigation costs under the premise of sharing property, abeyance of Individual civil procedure, bankruptcy exemption, ect. The Business Arbitration Department also carried out the following convention, right of the furniture and odds and ends of a shop, rent double or Addition compensation and priority, foreign debt priority, and so on. All of these show the characteristics of the civil procedure of bankruptcy ruled by the jurisprudence and customs. Through the study of the bankruptcy case processing of The Business Arbitration Department, we can see not only western legal system forced influence to Chinese businessman in the course of the west law ideas imported gradually, but also felt the advantage of the local customary law which combination of cases. The treatment of some significance for today＇s judicial practice. guided by the principle of fair and reasonable bankruptcy cases even has a profound guiding