破产程序中涉刑债权成立和清偿的认定——以A公司破产清算案为视角

The Determination of the Establishment and Liquidation of Criminal Claims in Bankruptcy Proceedings—From the Perspective of A Company Bankruptcy Liquidation Case

摘要: 刑破交叉下，同一笔借款在不同法律关系中偿还主体不同的，自然人犯罪主体的个人犯罪意志不能否定作为特定合同相对人的法人主体。缓和的违法一元论下，借贷合同不具有刑事违法性，依照民事法律规定认定为未生效合同，借款人因违反报批义务应承担违约责任。借贷合同涉嫌刑事犯罪，必然产生不同程序交叉救济的问题，确定债权清偿办法之前需要厘清不同救济程序之间的关系，以避免重复清偿，刑事追缴退赔与破产债权救济具有互补关系，不应互相排斥。债权成立的实质落脚点在清偿办法，集资参与人应从刑事程序中退还本金，同时基于涉罪合同违约性质以及维护社会稳定之考虑，债权人可向破产企业主张不在追缴退赔之列的利息利益。

Abstract: Under the intersection of criminal law and bankruptcy law, the same loan has different repayment subjects in different legal relationships. The individual criminal will of the natural person’s criminal subject cannot deny the legal person subject as a specific contract counterpart. Under the monism of mitigating illegality, the loan contract does not have criminal illegality. According to the provisions of civil law, it is deemed to be a non-effective contract, and the borrower shall be liable for breach of contract due to violation of the obligation of approval. The loan contract is suspected of a criminal offence, which will inevitably lead to the problem of cross-relief of different procedures. Before determining the method of creditor’s rights settlement, it is necessary to clarify the relationship between different relief procedures in order to avoid repeated liquidation. Criminal recovery and bankruptcy creditor’s rights relief are complementary and should not be mutually exclusive. The essence of the establishment of the creditor’s rights is the settlement method. The fund-raising participants should return the principal from the criminal procedure. At the same time, based on the nature of the breach of the contract and the maintenance of social stability, the creditor can claim the interest that is not included in the recovery of the compensation to the bankrupt enterprise.