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我国新企业破产法在立法理念上实现了从单纯的破产清算到以破产预防为目标的转变,确立了破产和解与破产重整制度。相应地破产法的具体制度,如别除权制度,必然受此影响。如何在破产预防立法目标与别除权保护之间寻求平衡?这是一个不容回避的问题。本文以我国破产立法为出发点,采取历史研究和比较研究的方法,以求找到化解此矛盾的方法并确立合理的依据,既能保护别除权又可以实现破产预防立法目标。
The Bankruptcy Law of China’s New Enterprise has realized the change of legislation from the simple bankruptcy and liquidation to the goal of bankruptcy prevention, and established the bankruptcy reconciliation and bankruptcy reorganization system. Correspondingly, the specific system of bankruptcy law, such as the system of excuses, must be affected by this. How to strike a balance between the objective of bankruptcy prevention legislation and protection of exclusive rights? This is an unavoidable issue. Taking the bankruptcy legislation of our country as the starting point, this article takes the methods of historical research and comparative study in order to find a way to resolve this contradiction and establish a reasonable basis, which can not only protect the right of excuse but also achieve the goal of bankruptcy prevention legislation.