2007年我国《企业破产法》首次引入破产重整程序,同时也引入了重整中的债权分组表决机制,债权分组对于企业顺利重整以及债权人利益保护都具有至关重要的作用,好的债权分组能够平衡好公平和效率,促进当事人充分谈判,实现当事人的意思自治,并引导债权人博弈向均衡结果发展。然而,由于《企业破产法》出台之初社会价值考量等原因,我国债权分组机制存在过于简单和刚性的问题,并且有以忽视债权人的利益来达到重整成功的目标的倾向。而随着社会的发展,私法自治理念的兴起以及对债权人利益的重视和保护,立法的修改和完善也将势在必行,在我国《企业破产法》立法中逐步引入更加灵活的分组机制以及确立起绝对优先原则已经具有必要性以及一定的现实基础。通过阅读和参考各学者的观点,考察域外各国分组表决机制的设计,并基于我国司法实践情况对分组表决模式的前景进行探究,本文提出我国应朝着建立折中性分组机制逐步发展,一方面参考“实质相似”的分组原则,突破目前法定性分组的限制,允许基于合理的划分依据将性质相同但地位、主体特征、利益诉求等不同的债权人划入不同的组别,使得分组机制走向灵活,以更好地考虑不同债权人的权益;另一方面参考日德的立法和司法实践,对分组的任意性进行一定的规范,建立法院对重整计划及内容贯穿于表决前后的实质审查,从而在我国分组机制日渐灵活的同时,由法院为债权人的利益保驾护航。除分组表决机制性质和方向的研究之外,本文还针对小额债权分组和出资人分组这两个分组的具体问题作出了分析和回应。本文反对在立法上完全废止小额债权组、完全由普通债权分段递减取代的主张,笔者认为,小额债权分组制度与分段递减清偿安排仍然存在区别,后者并不能对前者的功能设计进行完全架空和取代,特定情形下仍应当对小额债权单独分组。除此之外,《企业破产法》中的小额债权分组制度暗含了允许给予小额债权优惠清偿待遇的潜台词,因此它也成为了支持分段递减清偿实践的理论来源和规范基础,小额债权分组制度应在立法中得到保留。而在出资人分组的问题上,本文主张在我国建立起严格的绝对优先原则,协调好各利害关系人受偿顺位问题,但同时出于出资人分组的程序价值、以及出资人因新价值贡献等原因保有股权利益的情况下,仍然有必要保留单独设立出资人组对重整计划进行表决的制度,并应当进一步细化和完善出资人分组规则,以更好地实现不同性质股东之间的利益权衡,从而达致实质公平。
In 2007, Enterprise Bankruptcy Law introduced the bankruptcy reorganization system along with the creditor classification mechanism for the first time. The classification of creditors plays a crucial role in facilitating successful corporate reorganization and protecting the interests of creditors. A well-designed creditor classification mechanism can strike a balance between the value of fairness and efficiency, promote meaningful negotiations among the stakeholders, enable the parties’ autonomy, and guide creditors towards balanced outcomes in their negotiations. However, due to some public policy considerations at the time of the initial enactment of Enterprise Bankruptcy Law, China’s creditor classification mechanism suffers from oversimplification and rigidity, and there was a tendency to ignore the interests of creditors in order to achieve the goals of successful reorganization. With the development of society, the rise of the concept of private law autonomy and an increased focus on protecting creditors’ interests, it has become necessary and realistic to modify and improve the legislation. and it is essential to gradually introduce a more flexible classification mechanism and establish the principle of absolute priority in the legislation of the Enterprise Bankruptcy Law in China.By reading and considering the views of various scholars, examining the design of classification mechanism in foreign jurisdictions, and exploring the prospects of China’s classification system based on China’s judicial practice, this article proposes and suggests that China should gradually move towards developing and establishing a balanced classification mechanism. On the one hand, it should learn from the American principle of “substantially similar” to break free from the old rigid classification mechanism. This would allow creditors with different characteristics, status, and interests to be classified into different groups based on reasonable criteria, making the classification mechanism more flexible and better considering the interests of different creditors. On the other hand, it should draw reference and inspiration from Japanese and German legislation and judicial practice to regulate the arbitrariness of flexible classification. This can be achieved by establishing a substantial review of reorganization plans by the court, allowing the court to examining the contents of plans including its classification of creditors throughout the reorganization process, so that the court can safeguard the interests of creditors while the classification mechanism in China becomes more flexible at the same time.In addition to researching the nature and direction of the classification mechanism, this article also analyzes and responds to specific issues of classification such as issues regarding small claim creditor groups and shareholder groups. This article opposes the idea of completely abolishing the small claim creditor groups in legislation and replacing it entirely with the declining segments in general creditor groups. This article argues that there is still a difference between the small claim creditor groups system and the declining segments arrangement, and that the latter cannot completely replace the functional design of the former. Therefore, in certain circumstances, small claim creditor groups should be maintained. Furthermore, the small claim creditor group system provided by article 82 of Enterprise Bankruptcy Law implies the possibility of granting preferential treatment to small claim creditors, which serves as a theoretical basis supporting segmented arrangement practices, and thus, the small claim creditor group system should be retained in the legislation.Regarding the issue of the classification of shareholders, this article advocates the establishment of a strict principle of absolute priority in China to coordinate the interests of various stakeholders. However, at the same time, considering the procedural value and shareholders’ right to retain equity interests due to new value contributions, it is still necessary to retain the system of separate class of shareholders to vote on the reorganization plan. Additionally, the rules on classification of shareholder groups should be further refined and improved to better balance the interests of different types of shareholders and achieve substantial fairness.