중국 도산법상 채권 변제 순위에 관한 연구 (A Study on the Debt Repayment Priority under the Bankruptcy Law of China)

서지정보

· 발행기관 : 한양법학회
· 수록지 정보 : 한양법학 / 35권 / 3호 / 185 ~ 215페이지
· 저자명 : 유의덕, 손영화

초록

When a debtor's financial condition deteriorates, it is inevitable that every creditor will attempt to secure repayment as quickly as possible. However, there are differences among creditors in terms of claim amounts, status, information access, and speed of action. Without certain rules, it is easy to encounter issues of unfair property distribution. Therefore, how to fairly distribute the debtor's remaining assets among creditors becomes one of the most fundamental core aspects of the modern bankruptcy law system. Most modern countries choose to clearly stipulate the repayment priority of various claims through bankruptcy law. This repayment priority reflects a country's bankruptcy order and value orientation. The formation process of modern China's bankruptcy law is quite complex, resulting from the interaction between local customary law and foreign transplanted law. Especially regarding the priority of debt repayment, it is the result of conflicts and compromises among multiple forces.
This paper attempts to explore, from a historical perspective, the four significant periods in the evolution of China's bankruptcy law from its inception to its finalization: the late Qing Dynasty, the Republic of China period, the early years of the People's Republic of China, and from 2006 to the present. In the late Qing Dynasty, although the Qing government mimicked Western legislation and enacted the "Bankruptcy Law," the court still adhered to the historical tradition of prioritizing official claims. The collision between customary law and transplanted law caused this law to be shelved after a brief existence of just over a year. In the early Republic of China, the power of customary law remained strong. Although the Supreme Court attempted to overturn the long-standing practice of prioritizing official claims through case law, in practice, the phenomenon of the government protecting its own interests persisted. In the mid-Republic period, the government promulgated the "Bankruptcy Law of the Republic of China," marking official recognition of a bankruptcy order that provided equal repayment according to the nature of the claims. Influenced by revolutionary thoughts and Western advanced culture, vulnerable creditors such as depositors and workers began to try various ways to protect their rights. During this period, the old customary law was gradually dismantled. After the establishment of the People's Republic of China, although a trial version of the "Enterprise Bankruptcy Law" was formulated, it soon faced the historical transformation of state-owned enterprise reform, where "policy bankruptcy" became the basis for determining the repayment priority of bankruptcy claims for a time. The government, led by the Communist Party of China, attempted to place workers' claims at the top priority for repayment, reflecting its inclination to protect the labor group as a party of the working class. However, this temporary policy tool also sparked academic criticism and heated discussions. To truly formulate a modern bankruptcy law that aligns with market and economic principles, it took 20 years of drafting and revision before the official version of the "Enterprise Bankruptcy Law" was enacted in 2006, finally establishing the rules for the repayment priority of creditors in bankruptcy proceedings.
By studying the background of the formation of the rules for the repayment priority of claims in China's bankruptcy proceedings, readers can better understand the process of the formation of China's modern bankruptcy order from scratch.

영어초록

When a debtor's financial condition deteriorates, it is inevitable that every creditor will attempt to secure repayment as quickly as possible. However, there are differences among creditors in terms of claim amounts, status, information access, and speed of action. Without certain rules, it is easy to encounter issues of unfair property distribution. Therefore, how to fairly distribute the debtor's remaining assets among creditors becomes one of the most fundamental core aspects of the modern bankruptcy law system. Most modern countries choose to clearly stipulate the repayment priority of various claims through bankruptcy law. This repayment priority reflects a country's bankruptcy order and value orientation. The formation process of modern China's bankruptcy law is quite complex, resulting from the interaction between local customary law and foreign transplanted law. Especially regarding the priority of debt repayment, it is the result of conflicts and compromises among multiple forces.
This paper attempts to explore, from a historical perspective, the four significant periods in the evolution of China's bankruptcy law from its inception to its finalization: the late Qing Dynasty, the Republic of China period, the early years of the People's Republic of China, and from 2006 to the present. In the late Qing Dynasty, although the Qing government mimicked Western legislation and enacted the "Bankruptcy Law," the court still adhered to the historical tradition of prioritizing official claims. The collision between customary law and transplanted law caused this law to be shelved after a brief existence of just over a year. In the early Republic of China, the power of customary law remained strong. Although the Supreme Court attempted to overturn the long-standing practice of prioritizing official claims through case law, in practice, the phenomenon of the government protecting its own interests persisted. In the mid-Republic period, the government promulgated the "Bankruptcy Law of the Republic of China," marking official recognition of a bankruptcy order that provided equal repayment according to the nature of the claims. Influenced by revolutionary thoughts and Western advanced culture, vulnerable creditors such as depositors and workers began to try various ways to protect their rights. During this period, the old customary law was gradually dismantled. After the establishment of the People's Republic of China, although a trial version of the "Enterprise Bankruptcy Law" was formulated, it soon faced the historical transformation of state-owned enterprise reform, where "policy bankruptcy" became the basis for determining the repayment priority of bankruptcy claims for a time. The government, led by the Communist Party of China, attempted to place workers' claims at the top priority for repayment, reflecting its inclination to protect the labor group as a party of the working class. However, this temporary policy tool also sparked academic criticism and heated discussions. To truly formulate a modern bankruptcy law that aligns with market and economic principles, it took 20 years of drafting and revision before the official version of the "Enterprise Bankruptcy Law" was enacted in 2006, finally establishing the rules for the repayment priority of creditors in bankruptcy proceedings.
By studying the background of the formation of the rules for the repayment priority of claims in China's bankruptcy proceedings, readers can better understand the process of the formation of China's modern bankruptcy order from scratch.

참고자료

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