外商投資企業重整清算實務

Abstract

隨著全球化浪潮，跨國資本成為必然趨勢，然而，因各國普遍獎勵投資，企業此時所受管制較少，然當企業面臨經營逆境，隨著各國管制措施不同，企業如何透過各國不同清算、重整等制度保存實力，尋求再造機會，即成重點。是以，本文擬著重外商投資企業之探討出發，透過對於外商投資企業概念之釐清及相關理論之探討與深化，以中國大陸利用外資之方式及現況作為參照，說明中國目前對於企業破產、清算或重整之相關制度，以作為企業投資中國更完整之風險評估與規劃。並試圖透過與我國破產清算重整制度之比較，深度分析二者制度上之差異與實務現況。 企業重整、清算是本文之重點，公司重整制度源自19世紀中期美國聯邦法院衡平法上接管人制度(equity receivership)，嗣後廣為各國所採用。蓋企業欲進行清算或重整，該企業必須具備重整原因並且有再生能力，同時通過與各方利害關係人的協商，使企業得以擺脫其財務上的困境，避免破產，得以維持和再生。清算、重整制度對於解救瀕危企業，維護企業利益、債權人利益、確保社會大眾對於商業投資之信心等具有重大意義，且對彌補破產清算與破產和解制度的不足，有莫大助益。 職是，本文後半段將藉由對中國現有企業清算、重整制度程序之設計、法院扮演之角色與限制，以及相關實例之深入探討，具體闡釋中國現行制度之運作，並提出未來改進之建議。

As thrive-trend of globalization, the international-capital enterprise has dominated the business field in the world. And the positive attitude, encouragement, of governments to traders about investments lowered the gate of firm-building. However, once corporations face the obstacles in their operation, how to rebuild the firm and maintain their advantages at same time for future opportunity has been regarded as vital issue. Therefore, my essay will focus on systematic-analysis, delicate theory interprets and well-rounded discussion of investment model, including idea of rebuilding and financial liquidation of enterprises , of foreign businessman in China. Through deeply studying and comparing, corresponding to law in Taiwan, the using ways about foreign investment of China enterprises to explain the enactments toward bust, liquidation and reforming of business which may help people to engage themselves in china business.

Reorganization and financial liquidation of enterprises are the main point of the article. The first firm-reconstruct institution known as equity receivership, that has been widely used as standards around world, was founded in United States courts of appeals in middle of 19th century. The proper reasons and corresponding hurricane-solved abilities, such as efficient communication, fine rebuilding schedule and sufficient resource, are needing for manager to conquer their financial crisis avoiding bankruptcy. Capital liquidation and reconstructing are not only essential for saving the firm that be trapped in swamp of burst but also help protecting the benefit of creditor and proprietor. Moreover, it has significant meaning in remedy the confidence of community toward business investments and offset the defects of institutions.

On the point of view, the last paragraph of essay will focus on setting new progress-mode of business reforming and financial liquidation in China, detail examples discussion and interpreting the role of china court in reconstructing of business . Through careful analysis and attentive investigation, I will make several solid suggestions to future working about business reconstructing in China.