论法庭外债务重组与法庭内重整的合理衔接

为了有效落实国家优化营商环境和加快完善市场主体退出机制的政策,最高人民法院倡导构建法庭外债务重组与法庭内重整的衔接机制。基于域外发展趋势及联合国《破产法立法指南》等国际文件对困境企业拯救二元机制的规定,结合中国语境下法庭外债务重组和法庭内重整的实践情况,通过揭示法庭外债务重组无法避免的“钳制”问题和有限约束的“效力”问题,分析法庭外债务重组和法庭内重整相通规则与内在关系,明确了对二者之间进行合理衔接的背景、原因和基础。同时,对二者之间进行合理衔接还需要对衔接程序和衔接制度做出立法安排,主要包括预重整路径选择和法律地位的确定,以及衔接主体和衔接效力等制度的设计。构建法庭外债务重组与法庭内重整的合理衔接机制,不仅可以提高对困境企业拯救的司法效率,也为正在进行的中国破产法修订和完善提供参考。

Reasonable Cohesion of Out-of-court Debt Restructuring and Legal Bankruptcy Reorganization in Chinese Context

In order to effectively implement the national policy of optimizing business environment and speeding up the improvement of the exit mechanism of market entities, the Supreme People’s court advocates the establishment of a cohesion mechanism of out-of-court debt restructuring and legal bankruptcy reorganization. Based on the trend of extraterritorial development and the provisions of international documents such as the United Nations “Legislative Guide on Insolvency Law” on the dual mechanism of rescuing troubled enterprises, and combined with the practice of out-of-court debt restructuring and legal bankruptcy reorganization in the context of China, through revealing the inevitable problem of “clamping down” and the problem of “effectiveness” with limited constraints in out-of-court debt restructuring, this paper analyzed the mutual rules and internal relations between out-of-court debt restructuring and legal bankruptcy reorganization, and clarified the background , reason and foundation of the reasonable cohesion of out-of-court debt restructuring and legal bankruptcy reorganization. At the same time, it is necessary to make legislative arrangements for the connection procedure and the connection system, including the selection of pre-reorganization path and the determination of legal status, as well as the design of the system of cohesion subject and cohesion effect and so on. The construction of a reasonable cohesion mechanism of out-of-court debt restructuring and legal bankruptcy reorganization, can not only improve the judicial efficiency of rescuing troubled enterprises, but also provide a legislative reference for China’s bankruptcy law which is being revised and perfected.