界限与协同:破产程序与刑事程序适用顺位辨析

Division and Coordination: Analysis on the Application Order between Bankruptcy Procedure and Criminal Procedures

目前,我国立法中还没有关于非法集资犯罪审理与破产程序衔接和协调的明确规定,司法实践对于此类民刑交叉案件的处理缺乏统一的标准,在面对破产程序与刑事程序交叉时,存在同案不同判的现象,债权人、集资受害人利益受到侵害的现象十分普遍。在此类案件中,对于民刑交叉的处理,不能单一地以"先刑后民"或"民刑独立"为标准,而是遵循"民刑协同"的路径,区分非法集资企业破产案件中的民刑界限,协调推动破产程序与刑事程序并进,平衡刑事受害人与破产债权人财产利益之救济,以妥善解决破产程序与刑事程序交叉案件的复杂利益纠纷。

So far, in China, the interface and coordination between bankruptcy procedure and the trial of illegal fund-raising case have not been explicitly stipulated in the law, and there is no uniform standard of dealing with such cross cases between civil law and criminal law in judicial practice, which causes the same case with different sentences and frequent occurrence of infringing interests of creditors and victims of fund-raising cases. As for such cases, solutions should not simply be "criminal proceedings before civil" or "criminal proceedings separate from civil" but should be "coordinating criminal and civil procedures". We are supposed to distinguish the boundaries between civil law and criminal law during bankruptcy procedure amid the trial of illegal fund-raising cases, coordinate the progress of bankruptcy and criminal proceedings and balance the interests of relieving property rights between creditors and victims in order that complicated disputes of interests in overlapping cases between bankruptcy and criminal proceedings could be solved properly.