论破产法上的欺诈转移
发布时间：2019-02-24 15:10
【摘要】：破产法对市场经济体制的建立具有重要作用，它往往是衡量一国市场经济成熟程度的重要标志之一。破产法的核心在于，以破产方式终止企业法人资格时，债务人只负有以实有财产清偿债务的责任，并免除其它不能偿还部分的清偿义务。破产法的初衷本是为了优化市场，平衡债权人与债务人之间的利益，给债务人以更生的机会。然而，当法律对某一群体的保护走到极致时，法律往往被这一群体当作谋取私利的工具。 当前我国社会上就有不少债务人利用这一规定，，事先策划以种种方式将企业主要有效经营资产抽走，以仅剩下少许废旧物资的空壳企业承担原企业的全部债务，再申请破产，以达到逃避债务清偿的目的。由于目前我国社会整体信用意识尚处于贫困状态，因此，给予债权人以充分的法律保障在相当长的一段时间内都将是民商法最重要的任务之一。破产法作为规范市场主体退出机制的商事法律更应肩负起对债权人利益实施临终关怀的神圣使命。 然而，相比市场对破产法的极高期望，我国现行法律对债务人破产欺诈的规定显得过于粗糙和简陋，不利于对债权人利益的保护。这些破产欺诈行为如不能在法律上给予明确的定性，及时得到有力的制止，破产法的实施将步入一个可悲的误区。 本文基于我国现行破产法之规定，比较、借鉴当今发达国家之立法，立足于破产法对欺诈转移的法律规制这一角度，对欺诈转移的认定、效力和相关人员的责任等方面进行了阐述，最终提出构建我国欺诈转移法律体系的若干见解。
[Abstract]:Bankruptcy law plays an important role in the establishment of market economy system, and it is often one of the important marks to measure the maturity of a country's market economy. The core of the bankruptcy law is that when the enterprise legal personality is terminated by bankruptcy, the debtor is only liable to pay off the debt with real property and is relieved of the other non-repayable part of the repayment obligation. The original intention of bankruptcy law is to optimize the market, balance the interests between creditors and debtors, and give the debtor the opportunity to rehabilitate. However, when the legal protection of a group of people to the extreme, the law is often used by this group as a tool for personal gain. At present, quite a number of debtors in our society have used this provision to plan in advance to withdraw the main effective operating assets of the enterprises in various ways, so that shell enterprises with only a few scrap materials will assume all the debts of the original enterprises and apply for bankruptcy again. In order to avoid paying off debts. At present, the whole credit consciousness of our country is still in the state of poverty, so it will be one of the most important tasks of civil and commercial law to give sufficient legal protection to creditors in a long period of time. Bankruptcy law, as a commercial law regulating the withdrawal mechanism of market subjects, should shoulder the sacred mission of carrying out hospice care to the interests of creditors. However, compared with the extremely high expectations of the market for bankruptcy law, the current law of our country is too rough and simple to protect the interests of creditors. If these bankruptcy fraud can not be clearly defined in the law and can be stopped in time, the implementation of bankruptcy law will step into a sad misunderstanding. Based on the provisions of the current bankruptcy law of our country, this paper compares and draws lessons from the legislation of today's developed countries, based on the legal regulation of fraud transfer in the bankruptcy law, and determines the fraud transfer. Finally, the author puts forward some opinions on constructing the legal system of fraud transfer in China.
【学位授予单位】：对外经济贸易大学
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D912.29
本文编号：2429661
[Abstract]:Bankruptcy law plays an important role in the establishment of market economy system, and it is often one of the important marks to measure the maturity of a country's market economy. The core of the bankruptcy law is that when the enterprise legal personality is terminated by bankruptcy, the debtor is only liable to pay off the debt with real property and is relieved of the other non-repayable part of the repayment obligation. The original intention of bankruptcy law is to optimize the market, balance the interests between creditors and debtors, and give the debtor the opportunity to rehabilitate. However, when the legal protection of a group of people to the extreme, the law is often used by this group as a tool for personal gain. At present, quite a number of debtors in our society have used this provision to plan in advance to withdraw the main effective operating assets of the enterprises in various ways, so that shell enterprises with only a few scrap materials will assume all the debts of the original enterprises and apply for bankruptcy again. In order to avoid paying off debts. At present, the whole credit consciousness of our country is still in the state of poverty, so it will be one of the most important tasks of civil and commercial law to give sufficient legal protection to creditors in a long period of time. Bankruptcy law, as a commercial law regulating the withdrawal mechanism of market subjects, should shoulder the sacred mission of carrying out hospice care to the interests of creditors. However, compared with the extremely high expectations of the market for bankruptcy law, the current law of our country is too rough and simple to protect the interests of creditors. If these bankruptcy fraud can not be clearly defined in the law and can be stopped in time, the implementation of bankruptcy law will step into a sad misunderstanding. Based on the provisions of the current bankruptcy law of our country, this paper compares and draws lessons from the legislation of today's developed countries, based on the legal regulation of fraud transfer in the bankruptcy law, and determines the fraud transfer. Finally, the author puts forward some opinions on constructing the legal system of fraud transfer in China.
【学位授予单位】：对外经济贸易大学
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D912.29
【引证文献】
相关硕士学位论文 前2条
1 张庞坤;破产欺诈法律规制研究[D];中国海洋大学;2011年
2 刘青一;虚假破产罪研究[D];湖南大学;2010年
本文编号：2429661
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