重整人制度研究
發(fā)布時(shí)間：2018-08-03 15:54
【摘要】：重整制度作為現(xiàn)代破產(chǎn)制度的最新組成部分，是現(xiàn)代商法鑒于大公司在社會(huì)經(jīng)濟(jì)生活中日益重要的地位和作用，為克服和解制度的消極之處，而于二十世紀(jì)發(fā)展起來的一種新型的更為有效的破產(chǎn)預(yù)防制度。其注意力，不在于如何避免適應(yīng)破產(chǎn)清算程序，而在于使有破產(chǎn)危險(xiǎn)的公司盡快復(fù)蘇和壯大，從而保護(hù)股東、債權(quán)人、職工等各方面的利益。 隨著我國(guó)社會(huì)主義市場(chǎng)經(jīng)濟(jì)的發(fā)展，現(xiàn)行破產(chǎn)法的歷史局限性及其缺陷日益突出，其中整頓制度更是跟不上時(shí)代的步伐。為此，我國(guó)對(duì)該法的修改已進(jìn)行了數(shù)十年之久。至今卻還是個(gè)草案。但這也為我們研究重整人制度提供了充裕的時(shí)間。重整制度在我國(guó)理論界就很少見之研究，更不用說重整人制度的研究了。因此，本文就以重整人制度為研究對(duì)象，希望這有助于我國(guó)的重整制度的立法。 全文包括五個(gè)部分以及前言，約三萬余字。行文如下： 前言部分主要是指出重整人的內(nèi)含，，并結(jié)合我國(guó)當(dāng)前對(duì)重整人制度的立法及理論研究狀況，說明了研究重整人制度具有現(xiàn)實(shí)意義。 第一部分是重整人制度引入的平臺(tái)。該部分分別從宏觀方面和微觀方面論證了重整人制度建立的可能性和必要性。可能性在于破產(chǎn)清算制度和和解制度不足引發(fā)的重整制度的建立。必要性在于董事會(huì)和清算中的管理人無法直接簡(jiǎn)單成為重整的業(yè)務(wù)執(zhí)行人。針對(duì)我國(guó)現(xiàn)行破產(chǎn)法中的整頓制度是否是重整制度的爭(zhēng)議，從整頓和重整的根本性質(zhì)上加以了區(qū)別，指出了我國(guó)整頓制度非重整制度，重整人制度的不存在也是當(dāng)然的結(jié)論。 第二部分是闡述重整人的法律地位。研究重整人的法律地位，對(duì)厘清重整人的權(quán)利和義務(wù)具有重要理論意義和實(shí)踐意義。關(guān)于重整人的法律性質(zhì)，學(xué)術(shù)界存在代理說和公吏說兩種學(xué)說之爭(zhēng)。但二者都存在缺陷。本文認(rèn)為。要準(zhǔn)確界定出重整人的法律地位，就得從理順重整人與法院、重整企業(yè)以及利害關(guān)系人等各方面的關(guān)系著手。 第三部分為重整人角色的準(zhǔn)入研究。通過考察有關(guān)國(guó)家或地區(qū)的重整制度，發(fā)現(xiàn)對(duì)重整人選任的準(zhǔn)則存在兩種相對(duì)立的觀點(diǎn)。本文認(rèn)為，這種分歧是緣于對(duì)公正和效率二者關(guān)系的權(quán)衡。并主張，重整人的選任應(yīng)根據(jù)重整中介組織發(fā)展階段而定。重整人在一定程度上講，它掌握重整企業(yè)的生死命運(yùn)，因此研究重整人應(yīng)具備哪些條件就顯得值得和必要。本文分別 從積極條件和消極條件方面加以了闡述。 第四部分是翻退重整人的權(quán)利和義務(wù)。綜合各國(guó)法的規(guī)定，重整人的 職權(quán)大致有六個(gè)方面，報(bào)酬和利償當(dāng)然是重整人權(quán)利的范疇。在義務(wù)承受 方面，著重闡述了不同于董事所承受義務(wù)的方面。權(quán)利與義務(wù)的存在是對(duì) 立統(tǒng)一的，但權(quán)利有被濫用的時(shí)候，義務(wù)有被不履行的可能，因此有必要 設(shè)定法律責(zé)任作為強(qiáng)制的后盾。法律責(zé)任主要包括刑事責(zé)任、民事責(zé)任和 行政責(zé)任。 第五部分是研究重整人與其他重整機(jī)構(gòu)的關(guān)系。由于立法技術(shù)、歷史 背景以及各國(guó)國(guó)情的不同，各國(guó)或地區(qū)對(duì)重整機(jī)構(gòu)有不同的設(shè)置。本文就 各主要國(guó)家和地區(qū)設(shè)置的重整機(jī)構(gòu)作了翻概述和比較。并把這些形式多樣 的機(jī)關(guān)歸類為柑示機(jī)關(guān)、監(jiān)督機(jī)關(guān)和意思機(jī)關(guān)三大機(jī)關(guān)。從而著重翻退了 重整人與重整監(jiān)督人、重整人與關(guān)系人會(huì)議的關(guān)系。
[Abstract]:As the latest part of the modern bankruptcy system, the reorganization system is a new and more effective bankruptcy prevention system developed in twentieth Century, in view of the increasingly important position and role of the modern commercial law in the social and economic life, and in order to overcome the negativity of the reconciliation system. Bankruptcy liquidation should be carried out in order to make the company in danger of bankruptcy recover and grow as soon as possible so as to protect the interests of shareholders, creditors, employees and other aspects.
With the development of the socialist market economy in China, the historical limitations and defects of the current bankruptcy law are increasingly prominent, and the rectifying system is more than the pace of the times. For this reason, the revision of the law has been carried out for decades. But it has still been a draft. But it also provides ample time for us to study the system of rewhole people. The system of reorganization is very rare in the theoretical circle of our country, not to mention the research on the system of reorganizing people. Therefore, this paper takes the system of reintegration as the research object, and hopes this will help the legislation of the reorganization system in our country.
The full text consists of five parts and a preface of about 30000 words.
In the preface, the main point is to point out the inclusion of the whole people, and to illustrate the practical significance of the study of the system of re integration, combining with the current situation of the legislative and theoretical research on the system of heavy and complete human beings in China.
The first part is the platform introduced by the reintegration system. This part demonstrates the possibility and necessity of the establishment of the reintegration system from both macro and micro aspects. The possibility lies in the establishment of the reorganization system caused by the bankruptcy liquidation system and the lack of reconciliation system. The necessity is that the managers in the board of directors and the liquidation cannot be directly simple. In view of the dispute over the reorganization system in the current bankruptcy law of our country, the fundamental nature of reorganization and reorganization is distinguished, and the non reorganization system of the reorganization system in China is pointed out, and the non existence of the reorganization system is also a conclusion of course.
The second part is to explain the legal status of the re integration of the whole person. It is of great theoretical and practical significance to study the legal status of the rectification of the whole person and to clarify the rights and obligations of the whole person. There are two doctrines on the legal nature of the re integration of the human being, but in the academic circles, the two are all defective. The legal status of the whole person must start with straightening out the relationship between the reformer and the court, reorganizing the enterprises and interested parties.
The third part is the study of the admittance of the reintegral role. Through the investigation of the reorganization system in the countries or regions, there are two relative standpoints on the criteria for the selection of the rewhole people. This paper argues that this divergence is due to the balance of the relationship between the two and the efficiency of justice and efficiency. The reformer should be based on the development of the reorganization intermediary organization. To a certain extent, to a certain extent, to a certain extent, it grasps the fate of the life and death of the reorganization enterprise, so it is worthwhile and necessary to study the conditions which the people should have.
It expounds from positive and negative conditions.
The fourth part is to reverse the rights and obligations of the reformer.
There are generally six aspects of power. Remuneration and compensation are, of course, the category of regroup's rights.
In this respect, it focuses on the different aspects of directors' obligations. The existence of rights and obligations is right.
Although the right is abused, the obligation is not fulfilled, so it is necessary.
The legal liability includes legal responsibility, civil liability and civil liability.
Administrative responsibility.
The fifth part deals with the relationship between reformer and other reorganization bodies.
Background and different national conditions, countries and regions have different settings for reorganization agencies.
The reorganization organs established by major countries and regions have been summarized and compared.
The organ is classified as the citrus organ, the supervisory organ and the three main organs of the sense organ.
The relationship between reorganizing and reorganizing supervisors, reorganizing and reorganizing meetings.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2004
【分類號(hào)】：D912.29
本文編號(hào)：2162232
[Abstract]:As the latest part of the modern bankruptcy system, the reorganization system is a new and more effective bankruptcy prevention system developed in twentieth Century, in view of the increasingly important position and role of the modern commercial law in the social and economic life, and in order to overcome the negativity of the reconciliation system. Bankruptcy liquidation should be carried out in order to make the company in danger of bankruptcy recover and grow as soon as possible so as to protect the interests of shareholders, creditors, employees and other aspects.
With the development of the socialist market economy in China, the historical limitations and defects of the current bankruptcy law are increasingly prominent, and the rectifying system is more than the pace of the times. For this reason, the revision of the law has been carried out for decades. But it has still been a draft. But it also provides ample time for us to study the system of rewhole people. The system of reorganization is very rare in the theoretical circle of our country, not to mention the research on the system of reorganizing people. Therefore, this paper takes the system of reintegration as the research object, and hopes this will help the legislation of the reorganization system in our country.
The full text consists of five parts and a preface of about 30000 words.
In the preface, the main point is to point out the inclusion of the whole people, and to illustrate the practical significance of the study of the system of re integration, combining with the current situation of the legislative and theoretical research on the system of heavy and complete human beings in China.
The first part is the platform introduced by the reintegration system. This part demonstrates the possibility and necessity of the establishment of the reintegration system from both macro and micro aspects. The possibility lies in the establishment of the reorganization system caused by the bankruptcy liquidation system and the lack of reconciliation system. The necessity is that the managers in the board of directors and the liquidation cannot be directly simple. In view of the dispute over the reorganization system in the current bankruptcy law of our country, the fundamental nature of reorganization and reorganization is distinguished, and the non reorganization system of the reorganization system in China is pointed out, and the non existence of the reorganization system is also a conclusion of course.
The second part is to explain the legal status of the re integration of the whole person. It is of great theoretical and practical significance to study the legal status of the rectification of the whole person and to clarify the rights and obligations of the whole person. There are two doctrines on the legal nature of the re integration of the human being, but in the academic circles, the two are all defective. The legal status of the whole person must start with straightening out the relationship between the reformer and the court, reorganizing the enterprises and interested parties.
The third part is the study of the admittance of the reintegral role. Through the investigation of the reorganization system in the countries or regions, there are two relative standpoints on the criteria for the selection of the rewhole people. This paper argues that this divergence is due to the balance of the relationship between the two and the efficiency of justice and efficiency. The reformer should be based on the development of the reorganization intermediary organization. To a certain extent, to a certain extent, to a certain extent, it grasps the fate of the life and death of the reorganization enterprise, so it is worthwhile and necessary to study the conditions which the people should have.
It expounds from positive and negative conditions.
The fourth part is to reverse the rights and obligations of the reformer.
There are generally six aspects of power. Remuneration and compensation are, of course, the category of regroup's rights.
In this respect, it focuses on the different aspects of directors' obligations. The existence of rights and obligations is right.
Although the right is abused, the obligation is not fulfilled, so it is necessary.
The legal liability includes legal responsibility, civil liability and civil liability.
Administrative responsibility.
The fifth part deals with the relationship between reformer and other reorganization bodies.
Background and different national conditions, countries and regions have different settings for reorganization agencies.
The reorganization organs established by major countries and regions have been summarized and compared.
The organ is classified as the citrus organ, the supervisory organ and the three main organs of the sense organ.
The relationship between reorganizing and reorganizing supervisors, reorganizing and reorganizing meetings.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2004
【分類號(hào)】：D912.29
【引證文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前3條
1 王繼芳;公司重整人制度研究[D];西南財(cái)經(jīng)大學(xué);2006年
2 章永進(jìn);破產(chǎn)重整機(jī)構(gòu)法律制度研究[D];南昌大學(xué);2008年
3 施文昌;公司重整人選任制度研究[D];西南財(cái)經(jīng)大學(xué);2008年
本文編號(hào)：2162232
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