破产重整中的共益债务融资法律适用之检视

An Examination of the Legal Application of Mutual Interest Debt Financing in Bankruptcy Reorganization

摘要: 破产企业重整的第一步就是寻找借款资金盘活，破产企业为寻得融资，需要设置一定规则优待使出借人确信能够获得受偿。《企业破产法》所设置的优待规则即赋予共益债务融资优先受偿属性。由于我国破产法规范尚处于积极演进之中，本项规则在具体案件的法律适用上出现了很多问题。对法律适用问题的检视是促进《企业破产法》发展的应有之义。共益债务融资的概念因为司法解释的出台而扩张，在适用本概念时需紧扣内涵。共益债务融资程序上的时间范围确定已经不利于司法实践，需重新检视以扩张范围。共益债务融资的内容除了包含本金之外是否还包含所产生的利息仍需探讨。共益债务融资实质是市场化行为，故应当以市场化视角对待受偿顺序的选择，是否需要法条修改引入新规则待进一步明确。

Abstract: The first step in the reorganization of a bankrupt enterprise is to find the borrowed funds to revitalize it. In order to find financing, the bankrupt enterprise needs to set up certain rules and preferential treatment to make the lender confident that it can be repaid. The preferential treatment rules set by the Corporate Bankruptcy Law give priority to debt financing for mutual benefit. Since my country’s bankruptcy law is still in active evolution, this rule has many problems in the application of law in specific cases. The examination of the application of law is the proper meaning of promoting the development of the Corporate Bankruptcy Law. The concept of collective debt financing has been expanded due to the introduction of judicial interpretations, and the connotation needs to be closely followed when applying this concept. The determination of the time frame in the process of mutual benefit debt financing is no longer conducive to judicial practice, and needs to be re-examined to expand the scope. Whether the content of common-benefit debt financing includes the interest generated in addition to the principal still needs to be explored. The essence of common-benefit debt financing is market-oriented behavior. Therefore, the choice of the order of repayment should be treated from a market-oriented perspective. Whether it is necessary to modify the law to introduce new rules remains to be further clarified.