农村集体经济组织之破产适用

Application of Bankruptcy of Rural Collective Economic Organizations

近年来,中央“一号文件”数次提出加快农村集体经济组织立法。虽然《民法总则》已将农村集体经济组织认定为特别法人并进一步推向市场,但囿于历史政策以及农村集体经济组织所具有的营利性与公共服务性的双重属性等多重原因,目前对此类主体甚为关键的市场退出问题研究较少。一个健康的市场机制必须同时具有成熟的入市与出市规则,而破产制度作为现代法人退出市场的常态选择,能否适用于农村集体经济组织,在理论与实践中都悬而未决。优化农村集体经济组织的营商环境,包括优化其市场准入、市场存续及市场退出的营商环境,而市场退出恰是其中最大的短板。鉴于农村集体经济组织破产的可能性与可行性,加快推进此类特别法人的破产适用,已是时不我待。

The“No.1 Central Documents”issued in recent years have proposed several times to accelerate the legislation of rural collective economic organizations.Although the General Principles of Civil Law identifies rural collective economic organizations as special legal persons and further promotes them to the market,the market exit of such economic organization has not been studied thoroughly due to historical reasons and the fact that rural collective economic organizations are both for-profit and public service.A healthy market mechanism must have mature rules for both“market entry”and“market exit”,and the bankruptcy system is the normal choice of modern legal person for market exit.However,whether it is applicable to rural collective economic organizations is still pending in theory and practice.Optimizing the business environment of rural collective economic organizations involves optimizing the market environment for market entry,market survival and market exit,among which market exit is where the defect lies.In view of the possibility and feasibility of bankruptcy of rural collective economic organizations,it is urgent to speed up the application of bankruptcy of such special legal persons.