破产界限和破产清算：解析和构建 (Insolvency and insolvent liquidation: Analysis and Construct)
EW Barker Centre for Law & Business Working Paper 21/03
15 Pages Posted: 24 Feb 2021
Date Written: February 23, 2021
Chinese Abstract:破产清算（或破产清盘， 简称清算或清盘）和重整在 《企业破产法》里是处理破产公司的最重要的正式程序。正确理解清算的性质对市场经济的运行有重大的意义。本文从理论的高度，情景模拟和对商界的一些观察对破产界限和清算进行分析，阐释一般法下的收债和清算的关系、破产界限的含义、清算的集体性质和清算在市场经济的重要功能；尤其聚焦商业破产的定义，即债务人未清偿一项债权人要求债务人清偿的没有实质争议的到期债务即为商业破产，解释为什么这个定义公平合理并且会优化营商环境。
English Abstract:Insolvent liquidation (or winding up) and reorganization are the most important formal procedures for dealing with insolvent companies in the Enterprise Bankruptcy Act. It is important to understand correctly the nature of insolvent liquidation in the functioning of the market economy. This paper proceeds from the vantage points of theory, scenario simulation and observations of the commercial world to analyze the nature of insolvency and insolvent liquidation. From this, the article elucidates the relationship between debt collection under the general law and insolvent liquidation, the meaning of insolvency, the collective nature of insolvent liquidation and the important functions that insolvent liquidation serves in the market economy. In particular, the article focuses on the meaning of commercial (or cash flow) insolvency, which is the failure of the debtor to pay a debt that is not bona fide disputed (ie disputed on a substantial ground), that is due and payable and of which the creditor has demanded repayment, and explains why this meaning is fair and reasonable and why it improves the business environment.
Keywords: 清盘, 破产清盘, 破产界限, 商业破产, 资不抵债破产 Liquidation, insolvent liquidation, insolvency, commercial (cash flow) insolvency, balance sheet insolvency
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