资不抵债概念在德国破产法中的转变
发布时间：2018-08-30 20:56
【摘要】：2008年以来,全球爆发了严重的金融危机。美国雷曼兄弟投资银行的破产引发的连锁反应,使得世界范围内大部分银行纷纷陷入了兑付危机。对于世界诸多国家的企业公司经营者而言,“金融危机”四个字成为了2008年度的深刻而又沉重的关键词。严重的经济及金融危机所造成的影响,波及了全球范围内的许多国家。为稳定本国金融市场秩序,降低金融危机带来的负面影响,联邦德国立法机构就德国破产法第19条第2款所规定的资不抵债制度,重新引入了“修正的双层资不抵债”概念。德国破产法所规定的资不抵债概念,其意义自德国破产法立法以来,在实务界与理论界就备受争议。依据此前,即1999年1月1日至2008年10月18日生效的破产法第19条第二款版本,衡量债务人资产状况的重要标准,在于综合当时经济环境及各方因素,企业是否明显存在继续经营的可能。也即,持续经营可能性预测的结果取决于对于债务人财产的估值,而这到底是应置于企业的持续经营预测考量之下,还是应置于企业的清算程序之中。此版本概念被称为“原始的双层资不抵债”概念；而根据自2008年10月18日生效的破产法第19条第二款版本,继续经营预测的结果不再取决于企业估值预测,相反,若企业在一开始的继续经营预测中,获得正面结果,则上述按照规定,可以排除企业财务上的资不抵债状态。这样的资不抵债概念在理论界被称为“修正的双层资不抵债”概念。立法者们采取相应措施修正破产法中资不抵债概念规定的用意十分明显——他们担心金融危机将导致股权资产和不动产价值的大幅度缩水,从而引发企业规模性破产。为扭转这一可能的破坏性危机,立法者引入了在理论界曾受到严格批判的“修正的双层资不抵债”概念。得益于强有力的国家公权力手段,以及全体民众的共同努力,德国经济在2011年与2012年间发展势头良好。2012年11月9日,德国议会宣布解除对于现行资不抵债概念有效期限的规定。而事实上,按照此前立法决议,“‘修正的双层资不抵债概念”仅有两年的有效期,即效力截止至2010年12月31日,期间立法者曾将其效力期间延长至2013年12月31日。根据最新决议,“修正的双层资不抵债概念”将于2013年底过后,在破产法中截止期限的持续发挥效力。德国联邦立法机构的最新决议,在德国法学研究的理论与实务界掀起了新的波澜。一方面,立法者临时引入“修正的双层资不抵债概念”,是否对于抵抗经济危机具有积极意义尚待考察讨论；另一方面,在德国经济好转后,持续适用较为温和的“修正的双层资不抵债”概念,是否有利于构造良好的企业市场环境亦令人心存疑问。本文将通过对资不抵债制度发展历程的梳理、对资不抵债制度构成要件的分析,结合德国经济发展背景以及未来发展趋势,对上述问题做出法律理论及司法实践层面的分析解答,并对这一制度做出立法性评价。
[Abstract]:Since 2008, a serious financial crisis has broken out in the world. The bankruptcy of Lehman Brothers investment bank in the United States triggered a chain reaction, making most banks around the world have fallen into a cash crisis. In order to stabilize the order of domestic financial markets and reduce the negative impact of the financial crisis, the Federal German Legislature has reintroduced the "modified double-decker" system of insolvency as stipulated in Article 19, paragraph 2, of the German Bankruptcy Law. The meaning of the concept of insolvency stipulated in German Bankruptcy Law has been controversial in both practical and theoretical circles since the legislation of German Bankruptcy Law. In other words, the outcome of the forecast depends on the valuation of the debtor's property, and whether this should be taken into account in the enterprise's continuing operation forecast or in the enterprise's liquidation process. On the other hand, according to the second version of Article 19 of the Bankruptcy Law, which came into effect on October 18, 2008, the results of the continuing operation forecast no longer depend on the valuation forecast of the enterprise. On the contrary, if the enterprise obtains a positive result in the initial continuing operation forecast, the above-mentioned provisions can exclude the financial assets of the enterprise. This concept of insolvency is known in theorists as the "modified double-deck insolvency" concept. Legislators are taking steps to amend the bankruptcy law's definition of insolvency with a clear intention - they fear that the financial crisis will lead to a sharp decline in the value of equity assets and real estate, thereby triggering enterprises. To reverse this potentially destructive crisis, legislators introduced the revised concept of "double insolvency", which has been critically criticized by theorists. Thanks to the powerful means of national power and the joint efforts of all citizens, Germany's economy grew well between 2011 and 2012. November 9, 2012 On December 31, 2010, the German Parliament announced the lifting of the current term of validity of the concept of insolvency. In fact, in accordance with previous legislative resolutions, the "revised concept of dual insolvency" has only two years of validity, that is, until December 31, 2010, during which the legislator extended its validity until December 31, 2013. The latest resolution of the German Federal Legislature has set off a new wave in the theoretical and practical circles of German jurisprudence. On the one hand, the legislator temporarily introduced the "revised concept of dual insolvency", whether it is right or not. On the other hand, it is doubtful whether the more moderate concept of "modified double-deck insolvency" will help to construct a good market environment for enterprises after the German economy improves. Based on the analysis of the constituent elements of the insolvency system and the background of German economic development as well as the future development trend, this paper gives an analysis and solution to the above-mentioned problems in the aspects of legal theory and judicial practice, and makes a legislative evaluation of the system.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D951.6;DD912.29
[Abstract]:Since 2008, a serious financial crisis has broken out in the world. The bankruptcy of Lehman Brothers investment bank in the United States triggered a chain reaction, making most banks around the world have fallen into a cash crisis. In order to stabilize the order of domestic financial markets and reduce the negative impact of the financial crisis, the Federal German Legislature has reintroduced the "modified double-decker" system of insolvency as stipulated in Article 19, paragraph 2, of the German Bankruptcy Law. The meaning of the concept of insolvency stipulated in German Bankruptcy Law has been controversial in both practical and theoretical circles since the legislation of German Bankruptcy Law. In other words, the outcome of the forecast depends on the valuation of the debtor's property, and whether this should be taken into account in the enterprise's continuing operation forecast or in the enterprise's liquidation process. On the other hand, according to the second version of Article 19 of the Bankruptcy Law, which came into effect on October 18, 2008, the results of the continuing operation forecast no longer depend on the valuation forecast of the enterprise. On the contrary, if the enterprise obtains a positive result in the initial continuing operation forecast, the above-mentioned provisions can exclude the financial assets of the enterprise. This concept of insolvency is known in theorists as the "modified double-deck insolvency" concept. Legislators are taking steps to amend the bankruptcy law's definition of insolvency with a clear intention - they fear that the financial crisis will lead to a sharp decline in the value of equity assets and real estate, thereby triggering enterprises. To reverse this potentially destructive crisis, legislators introduced the revised concept of "double insolvency", which has been critically criticized by theorists. Thanks to the powerful means of national power and the joint efforts of all citizens, Germany's economy grew well between 2011 and 2012. November 9, 2012 On December 31, 2010, the German Parliament announced the lifting of the current term of validity of the concept of insolvency. In fact, in accordance with previous legislative resolutions, the "revised concept of dual insolvency" has only two years of validity, that is, until December 31, 2010, during which the legislator extended its validity until December 31, 2013. The latest resolution of the German Federal Legislature has set off a new wave in the theoretical and practical circles of German jurisprudence. On the one hand, the legislator temporarily introduced the "revised concept of dual insolvency", whether it is right or not. On the other hand, it is doubtful whether the more moderate concept of "modified double-deck insolvency" will help to construct a good market environment for enterprises after the German economy improves. Based on the analysis of the constituent elements of the insolvency system and the background of German economic development as well as the future development trend, this paper gives an analysis and solution to the above-mentioned problems in the aspects of legal theory and judicial practice, and makes a legislative evaluation of the system.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D951.6;DD912.29
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