商事主体终止的制度检视及其结构优化

商事制度之完善不能偏囿于入口端的登记,还应关注出口端的终止。终止制度对市场风险出清、债权债务处置、要素资源优化具有重要作用。终止的面向大于破产,还有庭外解散和停止经营的进路,终止流程包括去除营业资格的清算和剥离主体资格的注销。现有商事主体终止制度面临双线困局:外线解散过罚不当、清算概念混用、注销虚化空转;内线破产类型狭窄、终端注销衔接不畅。近年来,作为改革突破口的简易注销和强制注销渐次推出,但面临法律正当性阙如之虞。破解困局当有结构化方案,以主体分类、繁简分流为主线,辅以歇业登记、注销回转的补充,通过公司法、破产法、登记法的联动修改,可助益于商事主体终止的理念更新和制度优化。

Institutional Review and Structure Optimization of Termination of Commercial Market Subjects

The improvement of the commercial system should not be biased towards the registration system in the entry end,but should also pay attention to the termination system of the business subject at the exit end.It has an outstanding function for market risk settlement,disposal of creditorsrights and debts,and optimization of market resources.In addition to insolvency,termination routes include out-of-court dissolution and cessation of operations.The termination process includes the liquidation of business qualifications and the deregistration of commercial subject qualifications.The existing business termination system is faced with a twoline dilemma:on the one hand,the dissolution regulation is too harsh,the concept of liquidation is not used accurately,and the deregistration system looks vacant;on the other hand,the bankruptcy applies to narrow subjects,terminal bankruptcy deregistration is not smooth.In recent years,summary deregistration and compulsory deregistration have been gradually introduced,but the system is facing the risk of legal legitimacy.Cracking the dilemma requires structured solutions,namely,adhering to the principle of classification,supplemented by the rehabilitation mechanism, and jointly amending the company law, bankruptcy, and registration law.