企业破产连带债务人的破产程序建构研究

On the Construction of Bankruptcy Procedure of Joint Debtors in Enterprise Bankruptcy

摘要: 因承担企业破产连带责任而陷入无力偿债的自然人(下文简称“企业破产连带债务人”)是我国个人破产立法和法律实施中着重关注的对象。这类主体的破产与消费者，或者个体工商户等其他纯粹商自然人相比，存在较大差异，需在程序建构方面予以差别化考量。当前对自然人主体不加区分，统一适用自由选择和解、重整、清算三大程序的立法模式有待商榷。事实上，企业破产连带债务人走向破产与其经营企业的状况密切相关，如果其企业能够通过重整、和解程序获得拯救，则其个人债务可以一并进行处理；如果企业已经清算注销，为有效发挥破产制度的功用，应在前置和解程序的基础上，合并重整、清算两大程序，以统一的个人债务调整程序替代当前主流的三程序自由选择模式。

Abstract: The natural persons (hereinafter referred to as “the joint debtors of enterprise bank-ruptcy”) who fall into insolvency due to undertaking joint and several liabilities of enterprise bankruptcy are the objects of great concern in China’s individual bankruptcy legislation and law implementation. The bankruptcy of such subjects is different from that of consumers, or other purely commercial natural persons such as individual businesses, which needs to be considered differently in terms of procedure construction. At present, there is no distinction between the sub-jects of natural persons, and the legislative mode of uniformly applying the three procedures of free choice reconciliation, reorganization and liquidation needs to be discussed. In fact, the bankruptcy of joint and several debtors of enterprise bankruptcy is related to the situation of their enterprises. If their enterprises can be saved through reorganization and reconciliation procedures, their per-sonal debts can be handled together; If the enterprise has been liquidated and cancelled, in order to effectively play the role of the bankruptcy system, the two procedures of reorganization and liq-uidation should be merged on the basis of the pre-settlement procedure, and the current main-stream of three procedures free choice model should be replaced by a unified personal debt ad-justment procedure.