俄罗斯破产重整中债权人利益保护法律制度研究
发布时间：2019-06-06 03:33
【摘要】： 企业破产清算是市场经济下“优胜劣汰”法则的自然体现,但是破产重整制度却反向行之,以挽救企业重生为核心目标,延长“困境企业”的市场生存周期。破产重整制度是市场经济发展到社会化大生产阶段的产物,它是社会本位理念发展的要求。此制度具有维护社会稳定、保持就业等方面的显著优点,从其诞生以来已经被世界众多国家采用。上世纪九十年代末,俄罗斯爆发严重的金融危机,大批金融机构濒临破产的边缘,为了挽救金融机构,维护社会的稳定,俄罗斯引入了破产重整制度,但是在重整制度实践中债权人的利益受到了严重的损害,债权人权利行使被动,破产重整中债权人的保护制度失灵。 本文通过两个线索寻找俄罗斯破产重整中债权人权利行使被动的根源。其一,全面梳理俄罗斯破产重整中债权人的保护制度,寻找制度设计的不足;其二,分析制度移植环境对制度实施的影响,寻找转型国家债权人保护制度的特殊性。本文认为,在破产重整中债权人利益保护制度的设计方面,转型国家不能完全照搬发达国家的模式,应该强化债权人利益的保护,建立激励与监督并重的债权人保护制度。中国和俄罗斯同属于转型国家,在破产重整债权人利益保护制度的建设方面存在相关性,俄罗斯经验对中国具有重要的启示作用。围绕上述观点本文分五章进行论述: 第一章,阐述俄罗斯现行法律框架下债权人弱势化的地位。俄罗斯的破产重整制度“реорганизация”移植于西方国家,设置在破产法律体系中,债权人保护的相关制度也构造其中。追溯历史,从债务执行中的债权人保护到破产重整中债权人的保护,俄罗斯实施多元价值目标下的债权人利益保护制度。这种以公共利益优先的债权人保护制度,遭到了债务偿付危机的挑战,债权人对公共利益的让渡演变为对强势利益集团的利益让渡,债权人的利益严重受损,弱势化地位形成。 第二章,阐述俄罗斯破产重整中债权人保护的制度设计。在俄罗斯破产重整制度有两个层次,法庭外重整和法庭内重整。在法庭外重整层次中,对债权人的保护主要体现在政府救助措施方面。在法庭内重整层次中对债权人利益保护最有代表性的制度有:第一,调查制度;第二,财务恢复中的担保制度;第三,仲裁管理制度。此外俄罗斯还设置了,债权人会议监督、仲裁管理人自律监督、俄罗斯联邦企业重整与破产管理局监督三个层次的监督制度,这对债权人利益的维护起到了重要的作用。 第三章,论述俄罗斯破产重整中债权人权利行使的被动。俄罗斯的债权人保护制度给予了债权人很多实体性的权利,但在实践中债权人权利行使受限。本文在总结俄罗斯破产实践典型案例的基础上,提出了“债权人权利行使被动化”的问题,并追寻了这一问题背后的法律根源。本文还进一步论证了债权人权利行使对俄罗斯重整制度实施绩效的影响。 第四章,揭示俄罗斯债权人利益保护立法目标实现的路径。俄罗斯破产重整制度采用了衡平的立法模式,在这种模式下债权人的利益通过重整公司的利益最大化的方式实现,此种实现方式与俄罗斯严峻的公司治理结构和司法环境相冲突,转型国家破产重整中的债权人利益需要强化保护。债权人利益保护立法目标的实现需要从债权人激励机制和监督机制完善两个方面完成。 第五章,总结俄罗斯破产重整中债权人利益保护制度建设对中国的启示。中国的破产重整制度也是法律移植的产物,重整制度也规定在破产法律框架下,中国债权人保护的法律变迁和俄罗斯具有相似性,债权人权利行使被动问题也具有相似性,俄罗斯债权人利益保护制度的完善对中国具有启示作用。第一,中国需要完善法庭外重整对债权人利益的保护;第二,中国需要建立破产重整的实质审查程序;第三,中国的需要规制破产重整计划的强制批准;第四,中国需要建立破产重整公司治理的债权人激励机制。
[Abstract]:The bankruptcy liquidation of the enterprise is the natural expression of the "the fittest of the fittest" 's law in the market economy, but the bankruptcy reorganization system is reversed, so as to save the rebirth of the enterprise as the core target, and extend the market survival period of the "predicament enterprise". The bankruptcy reorganization system is the product of the development of the market economy to the large-scale production stage, and it is the requirement of the development of the social standard. The system has the remarkable advantages of maintaining social stability and maintaining employment, and has been adopted by many countries in the world since its birth. In the late 1990s, Russia broke out a serious financial crisis, and a large number of financial institutions are on the verge of bankruptcy. In order to save the financial institutions and maintain the stability of the society, Russia has introduced the bankruptcy reorganization system. However, in the practice of the reform system, the interests of the creditors are seriously damaged, the rights of the creditors are in the passive mode, and the protection system of the creditors in the bankruptcy reorganization is out of order. In this paper, two clues are adopted to find out the passive rights of the creditors in the Russian bankruptcy reorganization First, it is to sort out the protection system of the creditors in the Russian bankruptcy reorganization, to find the deficiency of the system design, and to analyze the effect of the system transplant environment on the implementation of the system and to find the protection system of the creditor of the transitional state. The paper holds that in the aspect of the design of the creditor's interest protection system in the bankruptcy reorganization, the transition country cannot copy the model of the developed country completely, and the protection of the interests of the creditors should be strengthened, and the creditor's protection and supervision should be established. China and Russia are closely related to the construction of the interests protection system of the bankruptcy reorganization creditors, and the experience of Russia is of great importance to China. To show the effect. It is divided into five chapters around the above-mentioned point of view. The first chapter expounds the creditor's rights under the current legal framework of Russia The status of the vulnerability of the human being. The ".........................................." of the Russian bankruptcy reorganization system is transplanted to the western countries and is set up in the bankruptcy law system. The protection of the creditors is related. The system is also constructed. The tracing history, the protection of the creditors from the debt enforcement to the protection of the creditors in the bankruptcy reorganization, the creditor's rights under the multi-value target in Russia The system of the protection of the people's interests, such as the creditor's protection system with the priority of the public interest, has been challenged by the debt payment crisis, the creditor's transfer to the public interest is transferred to the benefit of the strong interest group, the benefit of the creditor is seriously damaged, The formation of the status of weakness. Chapter 2, the reform of the Russian bankruptcy The system design of the protection of the middle-class creditors. There are two levels in the Russian bankruptcy reorganization system, in that out-of-court reform of the tribunal, the protection of the creditor is mainly The most representative system for the protection of the interests of the creditors in the reform of the court is: the first, the investigation system; the guarantee system in the second and the financial recovery in addition, Russia has set up that supervision of the creditor's conference, the self-discipline supervision of the arbitration management, the reform of the enterprise of the Russian federation and the supervision of three levels of supervision system, which is in the interest of the creditor The maintenance of Russia has played an important role, and the third chapter discusses Russia. The passive of the exercise of the rights of the creditors in the bankruptcy reorganization. The Russian creditor's protection system gives the creditor a lot of substantive rights However, in practice, the exercise of the rights of the creditor is limited. On the basis of summarizing the typical case of the Russian bankruptcy practice, the paper puts forward the "The realization of the right of the creditor to be passive" problem. In this paper, the author further demonstrates the right of the creditor to exercise. The impact of the performance of the Russian reform system. The path to the realization of the objective of the protection of the interests of the Russian creditors. The Russian bankruptcy reorganization system adopts a balanced legislative model. In this mode, the interests of the creditors are realized through the way of maximizing the interests of the company. Ross's grim corporate governance structure and the justice environment conflict and transform The interests of the creditors in the national bankruptcy reorganization need to be strengthened. The realization of the protection of the interests of the creditors needs to be taken from the debt The mechanism and supervision mechanism of the party are completed in two aspects. The fifth chapter is to sum up the Roo. The construction of the creditor's interest protection system in the reform of the bankruptcy is a revelation to China. The bankruptcy reorganization system of China is also the product of the legal transplant. The reform system also provides for the legal change of the protection of the Chinese creditors and the Russia under the framework of the bankruptcy law. has the similarity, the creditor's right to exercise the passive issue also has the similarity, The perfection of the interests protection system of the Roth's creditors has an inspiration to China. First, China needs to improve the protection of the interests of the creditors outside the court; secondly, China needs to establish the substantive review procedure of the bankruptcy reorganization; and III. China's need to regulate the forced approval of the bankruptcy reorganization plan; and
【学位授予单位】：中国政法大学
【学位级别】：博士
【学位授予年份】：2009
【分类号】：DD912.29;D951.2
本文编号：2494032
[Abstract]:The bankruptcy liquidation of the enterprise is the natural expression of the "the fittest of the fittest" 's law in the market economy, but the bankruptcy reorganization system is reversed, so as to save the rebirth of the enterprise as the core target, and extend the market survival period of the "predicament enterprise". The bankruptcy reorganization system is the product of the development of the market economy to the large-scale production stage, and it is the requirement of the development of the social standard. The system has the remarkable advantages of maintaining social stability and maintaining employment, and has been adopted by many countries in the world since its birth. In the late 1990s, Russia broke out a serious financial crisis, and a large number of financial institutions are on the verge of bankruptcy. In order to save the financial institutions and maintain the stability of the society, Russia has introduced the bankruptcy reorganization system. However, in the practice of the reform system, the interests of the creditors are seriously damaged, the rights of the creditors are in the passive mode, and the protection system of the creditors in the bankruptcy reorganization is out of order. In this paper, two clues are adopted to find out the passive rights of the creditors in the Russian bankruptcy reorganization First, it is to sort out the protection system of the creditors in the Russian bankruptcy reorganization, to find the deficiency of the system design, and to analyze the effect of the system transplant environment on the implementation of the system and to find the protection system of the creditor of the transitional state. The paper holds that in the aspect of the design of the creditor's interest protection system in the bankruptcy reorganization, the transition country cannot copy the model of the developed country completely, and the protection of the interests of the creditors should be strengthened, and the creditor's protection and supervision should be established. China and Russia are closely related to the construction of the interests protection system of the bankruptcy reorganization creditors, and the experience of Russia is of great importance to China. To show the effect. It is divided into five chapters around the above-mentioned point of view. The first chapter expounds the creditor's rights under the current legal framework of Russia The status of the vulnerability of the human being. The ".........................................." of the Russian bankruptcy reorganization system is transplanted to the western countries and is set up in the bankruptcy law system. The protection of the creditors is related. The system is also constructed. The tracing history, the protection of the creditors from the debt enforcement to the protection of the creditors in the bankruptcy reorganization, the creditor's rights under the multi-value target in Russia The system of the protection of the people's interests, such as the creditor's protection system with the priority of the public interest, has been challenged by the debt payment crisis, the creditor's transfer to the public interest is transferred to the benefit of the strong interest group, the benefit of the creditor is seriously damaged, The formation of the status of weakness. Chapter 2, the reform of the Russian bankruptcy The system design of the protection of the middle-class creditors. There are two levels in the Russian bankruptcy reorganization system, in that out-of-court reform of the tribunal, the protection of the creditor is mainly The most representative system for the protection of the interests of the creditors in the reform of the court is: the first, the investigation system; the guarantee system in the second and the financial recovery in addition, Russia has set up that supervision of the creditor's conference, the self-discipline supervision of the arbitration management, the reform of the enterprise of the Russian federation and the supervision of three levels of supervision system, which is in the interest of the creditor The maintenance of Russia has played an important role, and the third chapter discusses Russia. The passive of the exercise of the rights of the creditors in the bankruptcy reorganization. The Russian creditor's protection system gives the creditor a lot of substantive rights However, in practice, the exercise of the rights of the creditor is limited. On the basis of summarizing the typical case of the Russian bankruptcy practice, the paper puts forward the "The realization of the right of the creditor to be passive" problem. In this paper, the author further demonstrates the right of the creditor to exercise. The impact of the performance of the Russian reform system. The path to the realization of the objective of the protection of the interests of the Russian creditors. The Russian bankruptcy reorganization system adopts a balanced legislative model. In this mode, the interests of the creditors are realized through the way of maximizing the interests of the company. Ross's grim corporate governance structure and the justice environment conflict and transform The interests of the creditors in the national bankruptcy reorganization need to be strengthened. The realization of the protection of the interests of the creditors needs to be taken from the debt The mechanism and supervision mechanism of the party are completed in two aspects. The fifth chapter is to sum up the Roo. The construction of the creditor's interest protection system in the reform of the bankruptcy is a revelation to China. The bankruptcy reorganization system of China is also the product of the legal transplant. The reform system also provides for the legal change of the protection of the Chinese creditors and the Russia under the framework of the bankruptcy law. has the similarity, the creditor's right to exercise the passive issue also has the similarity, The perfection of the interests protection system of the Roth's creditors has an inspiration to China. First, China needs to improve the protection of the interests of the creditors outside the court; secondly, China needs to establish the substantive review procedure of the bankruptcy reorganization; and III. China's need to regulate the forced approval of the bankruptcy reorganization plan; and
【学位授予单位】：中国政法大学
【学位级别】：博士
【学位授予年份】：2009
【分类号】：DD912.29;D951.2
【引证文献】
相关博士学位论文 前1条
1 邹杨;中外企业不良资产债务重组方式的法律比较研究[D];大连海事大学;2014年
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