妨害清算罪之立法反思与完善——以我国现行公司、企业清算制度为背景

随着新《公司法》、《企业破产法》及相关司法解释的出台,我国公司、企业清算制度的法律框架基本形成,对清算人②、清算义务人③等相关主体违法清算或怠于清算的民事和行政责任追究机制亦逐步完善。然而在刑法规制层面上,则仅有妨害清算罪这一罪名,并且由于其立法之内在缺陷,未能完全反映当前公司、企业清算制度在刑法上的要求。因而有必要借鉴国外立法经验,从行为方式、时间要素、犯罪主体等构成要件方面入手,完善妨害清算罪立法,以期实现对公司、企业清算制度及债权人利益的全面刑法保护。

Rethinking on the Crime of Jeopardizing Liquidation and Its Legislative Improvement ---Based on Our Current Company Liquidation System Theory in Reconnaissance at Criminal Scene of Public Security Organization

With the promulgation of new Company Law, Enterprise Bankruptcy Law and their relevant judicial interpretations, our country＇ s legal framework of liquidation in both companies and enterprises has basically formed and the civil and administrative mechanism prosecuting the liquidator, the liquidating obligor and other relative sub- jects for illegal or negative liquidation has also gradually been improved. However, in the level of criminal law, it only contains the crime called jeopardizing liquidation, and due to the inherent defects, it fails to fully reflect all re- quirements of liquidation in both companies and enterprises. Therefore, in order to provide an overall protection to liquidation itself and the interests of creditors, we should learn from the experience of foreign legislation and perfect the crime of jeopardizing liquidation in China from the form of behavior, time element, subject of crime, etc.