作者：金颖波     2016-12-27

债是按照合同的约定或依照法律的规定，在当事人之间产生的特定的权利、义务关系，享有权利的人是债权人，负有义务的人是债务人。在市场经济中，交换是主要的形式，交换的进行，要求人们自觉地维护一个诚实信用的法则，给予对方等价利益的允诺。而对信用的违反的结果，即形成了债务问题。随着我国企业改制工作的深入与推广，对企业债务问题的正确处置越来越显示其重要性。这不但涉及到债权人的利益保护问题，更关系到信用原则在市场经济中的威信和债务法则的严肃性。

本文试就企业改制中的债务问题作一些研讨，以探究在改制工作中企业正确处置债务的方法。

一、企业改制与债务问题的关系。

我国传统的企业法人的法律形态，是以传统的所有制形式分类，主要表现为全民所有制、集体所有制、私营企业、合伙企业、联营企业和外资企业，所有制性质不同的企业，待遇也不同。但市场经济奉行的是市场主体等原则，按法律形态对企业进行划分。因此，对中国而言，经济转轨的重要任务之一就是对原有企业进行改造，使之符合市场经济的要求。

在我国法律上，企业改制有多种表现形式，有的通过产权部分或全部转移的方式进行如股权收购、合并、分立、兼并及租赁、承包等方式，有的通过权利转换的形式进行如债权转换为股权，有的通过权利分离形式如所有权与经营权分离的授权进行。虽然各种改制的表现形式不同，但改制而涉及到的企业资本额、经营权、组织结构、企业财产及至经营主体等方面的变化，已经直接影响到了债权的实现基础，而这些是基础是维系债权人利益关系的稳定条件。因此，企业改制与债务问题是息息相关的，改制涉及债务的履行问题，也影响到债的安全问题。在改制中应当处理好二者的关系问题，一方面不能因债务问题而捆住改制的双脚，另一方面，不能因改制而无视债权人的合法权益，打着改制的旗号公然逃避债务。既要坚决支持企业改制工作，又要依法处理借改制之机，侵害国家利益和债权人合法权益的行为。

二、企业债务发生的成因与类型

我国企业，特别是国有企业负债较重，其中大量债务已达不良程度，这一状况已成为我国企业的基本现象。究其本质，其债务发生的成因和类型有以下几种：

1、因拨改贷政策的实施而形成的对银行债务

1983年以前，我国国有企业在传统计划经济体制下，主要实行财政拨款制度，因此，企业资产负债率不高。为了促进企业效益提高，增强企业风险意识，1983年我国推行“拨改贷”制度，企业依靠贷款来解决资金，以负债方式承担资金运用风险，同时支付国家规定的利息，这措施对企业提高经营效益，降低成本，有激励作用。但由于我国企业经营机制落后，旧病未治，国有企业没有内在动力，吃国家饭、吃银行饭的思想仍然存在，新制度实施则直接导致了高负债的结构，欠银行债务居高不下已成为我国企业普遍存在的一个现象。

2、因经营不善等多种原因而形成了对企业及其他组织的债务（如三角债）。

旧体制和落后的产权结构使我国的国有企业缺乏内在活力和竞争力，同时我国逐步实行的改革又使国有企业增加了诸如财政的负担(如利改税政策的实施)和市场中双轨价格的压力等，国有企业不再享有以前的风光，迫使企业财务状况更加恶化，企业与企业之间欠债已成为家常便饭，债务困扰和企业经营不善纠缠不休，企业家拖欠赖债仍至破产逃债已成为中国经济发展的一大痼疾，而三角债的现象更使企业债务呈恶性循环状况。一个改制企业的欠债单位常常从工业、商业到银行、税务、财政、甚至个体户，承包经营户和普通工人，几乎无所不包。欠债范围也是企业债务中的一个普遍现象。

3、向社会及企业职工集资而形成的债务已成为影响社会稳定，搞好改制工作的一大难题。

由于企业经营状况不佳及资产不良等原因，某些企业无法从银行等金融机构取得足够的贷款，解决企业经营急需的各项资金，而社会经济的发展而产生的大量闲散社会资金，就为这些企业提供了筹资的渠道，它包括向社会范围内的集资和企业内部职工的集资及向其他单位、机构的借贷，这些集资（借资）范围广，涉及人数多，虽然手续简单，（常常打一张收据即可）筹资时间短，但这些集资利息高，还款时间短，加上这些集资系各位职工和社会个体辛劳所得，为高息所吸引而借给企业，一旦企业经营不当而影响到集资款的偿还，则必然形成了讨债风波，甚至上访风波，成为影响当地政治生活、社会稳定的大事。因此，改制中如何处理这一类债务已成为各级政府、各有关部门和企业的首要任务。

除上述几类比较有代表性的债务之外，企业债务的结构中尚有未缴税金，土地使用权使用中的出让金、补偿金和社会统筹费用、拖欠职工工资、医疗费等应付而未付的款项。

三、企业改制中逃债的种种行为

目前企业改制中最彻底的破坏信用的做法，还不是赖帐躲债，而是逃债，逃债的目的就是为了侵吞债权人的利益，化债务为虚无，使债权人只能望“债”兴叹。而逃债行为中针对的主要债务还是国家、银行和其他企业（特别是外地企业）的债务，它直接损害了国家、银行和其他企业的利益。这些行为常常表现为以下几种情形：

1、空壳化措施

即通过企业组织的变化，使原有企业成为失去清偿能力的空壳，企业的有效资产隐蔽地转移到另一实体中，空壳用以对付债务人。这一措施，实质上是属于法律上的企业分立，一个债务企业裂分为二，有效资产转移到新分出实体，而债务仍然保留存在原企业名下，使债权人面对的是个保留名称的空壳企业，所有的债权成为一张废纸。的的手段来使用。

2、低价转移

不少企业借改制之名，以兼并、合并、承包、租赁和股份制改组种种形式，以低价买卖方式转移企业资产或利益，这一行为特征是以较少的低价取得较高价值的财产，变相地转移企业财产，其迷惑性大，且往往得到工商、评估机构和相关部门的不当支持。

3、假破产，真转移

破产作为到期不能清偿债务的一种特殊清偿程序，越来越多地被运用。尤其是国有企业，更经常将破产作为重新配置有效资源的重要手段，但由于破产是一种有限的清偿，且应当首先安置职工，因此，常常被有些地方政府和企业为逃避债务，转移财产以达到改制企业目明文规定的依照法律办，法律无明文规定的按政策办，将企业的改制工作纳入法制化和规范化的轨道，防止借改制之机侵吞国有资产，损害债权人的利益。

4、改变债务承担主体

目前企业改制中，未经债权人同意、擅自改变债务承担主体的情况较为突出，它借企业改制之机，悬空、逃避债务，并常常以有关部门的行政文件作为改变依据，以公告的方式作为通知形式，并常常规定了不合理的申报期限。其目的以较差的偿还能力主体来代替原来企业，以达到逃债目的。

5、其他形式

如有的企业改制中没有聘请有资格的机构进行评估，或虽经评估，但高值低估或低值高估的现象常常出现，随意性大，而这些评估报告常常被作为评估企业财产价值的唯一依据，不容债权人异议或更改。

四、以法律为依据，与国家改制政策相结合，是企业改制中正确处置债务问题应遵循的原则。

由于企业改制的特殊性，加上我国债法起步较晚，1987年《民法通则》虽明确确立了债的概念和基本原则，但没有建立完善、具体的债法，并且《公司法》等均未对此作出具体规定，法制的滞后使企业改制中债务的处置缺乏系统性和可操作性。而有关主管机关的文件、通知等虽然为企业改制提供了可以遵循的主要规则，在一定程度上成为行动的指南，但也缺乏一定的规范性，并没有从真正意义上解决无法可依的问题。笔者认为二者的补充适用应当是目前企业改制工作中解决债务问题的一个指导原则。

1、应当坚持依照民法通则，全民所有制企业法，公司法以及转换经营机制条例，承包、租赁条例等法律、法规的规定，凡是有法律

2、在法律和政策均无明文规定的情况下，应坚持一切从实际出发，按照是否符合“三个有利于”的标准来衡量，对于地方政府制定的企业改制规定与中央方针政策、现行法律相抵触的，应当在实践中建议政府部门对此进行清理和修改，使地方政府制定的有关文件合法、公正和合理。既要坚持支持改制，又要依法制止借改制名义侵害国家利益和债权人合法权益的行为。

3、在具体改制工作中，应当建立一个详细、明确又合乎规定的改制流程：首先，应当对改制企业的财产进行清产核资，清理债权、债务；其次，应当按照《国有资产评估管理办法》、《关于企业兼并的暂行办法》、《关于出售国有企业产权的暂行办法》的相关规定，对涉及资产拍卖、出让、企业兼并、出售、联营或股份经营等情形，委托社会中介机构公开竞价投标，以提高透明度和公有资产的保值增值；然后确定原有债务的承担主体，必须明确债务转移（即改变债务承担主体）应征得债权人的同意，办理好相关的转移手续，在涉及银行抵押贷款的企业被拍卖或转让时，应通知抵押权人，必要时应重新办理相关贷款合同和抵押手续；最后，应完善工商登记手续，严格按照规定办理注销、设立或变更登记，实事求是地重新登记。同时作为改制工作的主管部门体改办和国资部门应当加强有力对企业改制工作的监管力度，有效制止各种违法、违规，侵害债权人利益的行为，以确保改制工作的顺利进行。

Author: Jin Yingbo 2016-12-27

Debt is a specific relationship of rights and obligations that arises between the parties in accordance with the provisions of a contract or laws. The person who enjoys the rights is the creditor, and the person who bears the obligations is the debtor. In a market economy, exchange is the main form, and the conduct of exchange requires people to consciously uphold a principle of honesty and credit, and give the other party a promise of equal benefits. The result of violating credit is the debt problem. With the deepening and promotion of China's enterprise restructuring work, the correct handling of corporate debt issues is increasingly showing its importance. This not only involves the protection of creditors' interests, but also relates to the credibility of the credit principle in the market economy and the seriousness of the debt law.

This article attempts to conduct some discussions on the debt issue in enterprise restructuring, in order to explore the correct methods for enterprises to handle debt in restructuring work.

1、 The relationship between enterprise restructuring and debt issues.

The traditional legal form of enterprise legal persons in China is classified based on traditional forms of ownership, mainly manifested as national ownership, collective ownership, private enterprises, partnership enterprises, joint ventures, and foreign-funded enterprises. Enterprises with different ownership natures also have different treatment. But the market economy adheres to the principles of market entities and divides enterprises according to legal forms. Therefore, for China, one of the important tasks of economic transformation is to transform existing enterprises to meet the requirements of a market economy.

In Chinese law, there are various forms of enterprise restructuring, some of which are carried out through partial or complete transfer of property rights, such as equity acquisition, merger, division, merger, leasing, contracting, etc. Some are carried out through rights conversion, such as debt conversion into equity, and some are authorized through rights separation, such as separation of ownership and management rights. Although various forms of restructuring vary, the changes in enterprise capital, management rights, organizational structure, enterprise property, and business entities involved in the restructuring have directly affected the basis for realizing creditor's rights, which are stable conditions for maintaining creditor's interests. Therefore, the restructuring of enterprises is closely related to debt issues, which involve the fulfillment of debts and also affect the safety of debts. In the process of restructuring, the relationship between the two should be properly handled. On the one hand, debt issues should not bind the feet of restructuring, and on the other hand, the legitimate rights and interests of creditors should not be ignored due to restructuring, and debt should not be openly avoided under the guise of restructuring. We must firmly support the restructuring of enterprises, while also dealing with acts that infringe on national interests and the legitimate rights and interests of creditors through the restructuring process in accordance with the law.

2、 The causes and types of corporate debt occurrence

Chinese enterprises, especially state-owned enterprises, have heavy debts, with a large amount of debt reaching non-performing levels, which has become a basic phenomenon of Chinese enterprises. In essence, the causes and types of debt occurrence are as follows:

1. The debt to banks formed due to the implementation of the loan allocation policy

Before 1983, state-owned enterprises in China mainly implemented a financial allocation system under the traditional planned economy system, resulting in a low asset liability ratio. In order to promote the improvement of enterprise efficiency and enhance enterprise risk awareness, China implemented the "transfer to loan" system in 1983. Enterprises rely on loans to solve their funds, bear the risk of fund utilization through debt, and pay the interest specified by the state. This measure has an incentive effect on enterprises to improve operational efficiency and reduce costs. However, due to the backwardness of China's enterprise management mechanism, untreated old diseases, and the lack of internal motivation in state-owned enterprises, the idea of eating the food of the state and the food of the bank still exists. The implementation of the new system directly leads to a high debt structure, and the high debt owed to banks has become a common phenomenon among Chinese enterprises.

2. Due to various reasons such as poor management, debts to enterprises and other organizations (such as triangular debts) have been formed.

The old system and outdated property rights structure have led to a lack of intrinsic vitality and competitiveness in China's state-owned enterprises. At the same time, the gradual implementation of reforms in China has increased the financial burden on state-owned enterprises, such as the implementation of the profit to tax policy, and the pressure of dual track prices in the market. State owned enterprises no longer enjoy the past glory, forcing their financial situation to worsen, and debt between enterprises has become a common occurrence, Debt troubles and poor corporate management are constantly intertwined, and entrepreneurs defaulting on their debts or even going bankrupt have become a major chronic problem in China's economic development. The phenomenon of triangular debt has further led to a vicious cycle of corporate debt. The debt units of a restructured enterprise often cover almost everything from industry, commerce, banking, taxation, finance, and even individual businesses, contracted operators, and ordinary workers. The scope of debt is also a common phenomenon in corporate debt.

3. The debt formed by raising funds from society and enterprise employees has become a major challenge that affects social stability and does a good job in restructuring work.

Due to poor operating conditions and non-performing assets, some enterprises are unable to obtain sufficient loans from financial institutions such as banks to meet the urgent needs of their operations. The large amount of idle social funds generated by the development of the social economy provides financing channels for these enterprises, including fundraising from within the social scope, internal employees, and borrowing from other units and institutions, These fundraising (borrowing) activities have a wide range and involve a large number of people. Although the procedures are simple and often require a receipt, the fundraising time is short. However, these fundraising activities have high interest rates and short repayment times. In addition, these fundraising activities are attracted by the hard work of various employees and individuals in society, and are lent to enterprises due to high interest rates. Once the enterprise's improper operation affects the repayment of the fundraising funds, it will inevitably lead to a wave of debt collection and even petitioning, Becoming a major event that affects local political life and social stability. Therefore, how to handle this type of debt during the restructuring has become the primary task for governments at all levels, relevant departments, and enterprises.

In addition to the representative types of debts mentioned above, there are still unpaid taxes in the structure of corporate debts, as well as payable but unpaid amounts such as transfer fees, compensation fees, social coordination fees, arrears of employee wages, medical expenses, etc. in the use of land use rights.

3、 Various behaviors of evading debts during enterprise restructuring

At present, the most thorough way to undermine credit in enterprise restructuring is not to rely on debts to evade debts, but to evade debts. The purpose of debt evasion is to embezzle the interests of creditors, turn debts into nothingness, and make creditors only sigh at "debts". The main debt targeted in debt evasion behavior is still the debt of the state, banks, and other enterprises (especially those from other regions), which directly damages the interests of the state, banks, and other enterprises. These behaviors often manifest in the following situations:

1. Shelling measures

That is, through changes in the organization of the enterprise, the original enterprise becomes a shell that loses its solvency, and the effective assets of the enterprise are covertly transferred to another entity, which is used to deal with the debtor. This measure essentially belongs to the legal separation of enterprises, where a debt enterprise is split into two and effective assets are transferred to the newly ceded entity, while the debt remains in the name of the original enterprise, making creditors face a shell enterprise with a reserved name, and all debts become a piece of waste paper. The means of using.

2. Low price transfer

Many enterprises, under the guise of restructuring, transfer their assets or interests through various forms such as mergers, acquisitions, contracting, leasing, and joint-stock restructuring, using low-priced buying and selling methods. This behavior is characterized by obtaining higher value assets at less low prices and indirectly transferring enterprise assets, which is highly confusing and often receives improper support from industry and commerce, evaluation agencies, and relevant departments.

3. False bankruptcy

Bankruptcy, as a special liquidation procedure for debts that cannot be repaid at maturity, is increasingly being used. Especially for state-owned enterprises, bankruptcy is often seen as an important means of reallocating effective resources. However, as bankruptcy is a limited form of repayment and employees should be resettled first, it is often used by some local governments and enterprises to evade debts and transfer assets to achieve the goals of restructuring enterprises. If there are no explicit provisions in the law, it should be handled according to policies, and the restructuring work of enterprises should be incorporated into the track of legalization and standardization, To prevent the embezzlement of state-owned assets and harm the interests of creditors through the opportunity of restructuring.

4. Change the debt bearing entity

At present, in the process of enterprise restructuring, the situation of changing the debt bearing entity without the consent of creditors is more prominent. It uses the opportunity of enterprise restructuring to suspend and evade debts, and often uses administrative documents from relevant departments as the basis for change, public announcements as the form of notification, and often sets unreasonable application deadlines. Its purpose is to replace the original enterprise with a subject with poor repayment ability, in order to achieve the goal of debt evasion.

5. Other forms

If some enterprises do not hire qualified institutions for evaluation during their restructuring, or although they have been evaluated, the phenomenon of high value undervaluation or low value overestimation often occurs with great arbitrariness, and these evaluation reports are often used as the only basis for evaluating the value of enterprise property, which cannot be disputed or modified by creditors.

4、 Based on the law and combined with national restructuring policies, it is a principle that should be followed to correctly handle debt issues in enterprise restructuring.

Due to the particularity of enterprise restructuring and the late start of China's debt law, the General Principles of the Civil Law in 1987 clearly established the concept and basic principles of debt, but did not establish a sound and specific debt law, and the Company Law did not make specific provisions on it. The lag of the legal system makes the disposal of debt in enterprise restructuring lack of systematicness and operability. Although the documents and notices of the competent authorities provide the main rules that can be followed for enterprise restructuring and serve as guidelines for action to a certain extent, they also lack a certain degree of standardization and do not truly solve the problems that cannot be relied on. The author believes that the supplementary application of the two should be a guiding principle for solving debt problems in current enterprise restructuring work.

1. We should adhere to the provisions of laws and regulations such as the General Principles of the Civil Law, the Law on Enterprises Owned by the Whole People, the Company Law, the Regulations on the Conversion of Business Mechanisms, the Regulations on Contracting and Leasing, and so on

2. In the absence of explicit provisions in laws and policies, we should adhere to the principle of starting from reality and measuring whether it meets the standards of "three benefits". If the enterprise restructuring regulations formulated by local governments conflict with central policies and current laws, we should suggest that government departments clean up and modify them in practice to make the relevant documents formulated by local governments legal, fair, and reasonable. We must not only uphold support for restructuring, but also lawfully stop any behavior that infringes on national interests and the legitimate rights and interests of creditors under the guise of restructuring.

3. In the specific restructuring work, a detailed, clear and compliant restructuring process should be established: firstly, the assets of the restructured enterprise should be cleared and verified, and the creditor's rights and debts should be cleared; Secondly, in accordance with the relevant provisions of the "Measures for the Administration of State owned Assets Evaluation," "Interim Measures for Enterprise Mergers," and "Interim Measures for the Sale of Property Rights of State owned Enterprises," social intermediary agencies should be entrusted to publicly bid for situations involving asset auctions, transfers, enterprise mergers, sales, joint ventures, or stock operations, in order to improve transparency and the preservation and appreciation of public assets; Then determine the subject of the original debt, and it must be clear that the transfer of debt (i.e. changing the subject of the debt) should obtain the consent of the creditor, complete the relevant transfer procedures, and notify the mortgagee when the enterprise involving bank mortgage loans is auctioned or transferred. If necessary, the relevant loan contract and mortgage procedures should be re processed; Finally, the procedures for industrial and commercial registration should be improved, and the cancellation, establishment, or change of registration should be handled strictly in accordance with regulations, and the registration should be re registered truthfully. At the same time, as the competent departments for the restructuring work, the Office for Restructuring and the State owned Assets Supervision and Administration Department should strengthen their supervision of the restructuring work of enterprises, effectively stop various illegal and irregular behaviors that infringe on the interests of creditors, and ensure the smooth progress of the restructuring work.