破产清算股东债权居次受偿法律问题研究

Research on the Legal Issues Connected with the Subordinate Compensation of Creditor's Right of Shareholders within Bankruptcy Liquidation

股东债权导致股东和公司之间出资法律关系和借款合同法律关系主体混同。股东债权既具有一定的积极作用,又存在一定的弊端。我国公司法和破产法未对股东债权专门规范,实践中常援引民事债权平等原则解决破产案件中的股东债权清偿问题。对此建议区分替代性出资和因欺诈受益的股东债权,并以二者之中较高者作为居次受偿股东债权,同时构建相应的配套制度。

The creditor＇s right of shareholder may lead to the confusion in legal relationships between shareholders and the company in respect of the capital contribution and loan contracts. It has positive and negative effects concurrently. PRC company laws and bankruptcy laws currently have no specific stipulation for creditor＇s right of shareholder, thus the claims of it are normally resolved according to the equality of civil credits, which remains problematic in practice. It is suggested to distinguish between alternative funding and shareholders＇ credit benefiting from fraud, to treat the higher one as the creditor of shareholders receiving subordinate compensation,and to set up the relevant legal system.