析新《企业破产法》中的破产原因

新《企业破产法》在破产原因的规定上,打破了旧破产立法对于不同所有制性质的企业法人适用不同破产原因的格局,对于所有的企业法人适用统一的破产原因,即“不能清偿到期债务并且资产不足以清偿全部债务或者明显缺乏清偿能力”这一选择性标准。然而,新《企业破产法》关于企业破产原因的这种选择性规定,在法律理论、立法技术和司法实务中却存在着严重的不足,因此应重构破产原因。

An Analysis of Cause of Bankruptcy in the New Corporate Bankruptcy Law

About the cause of bankruptcy, the new Corporate Bankruptcy law provides a unified standard which is unable to pay due debts and inability to offset debts with assets or insolvent obviously. This is a big progress and it breaks the pattern in the old law that different ownership corporate has different standard in the cause of bankruptcy. However, this standard that creditors and debtors can choose also has some serious shortcomings on the legal theory, legislative technique and judicial practice. To solve them, the thesis supplies a concrete thought about re-construction of cause of bankruptcy.