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澳門破產法律制度的檢討與完善 : 歷史與功能比較的視角 = The review and improvement of Macau bankruptcy law : a historical and functional comparative study

English Abstract

The current Macau bankruptcy institute, which was prescribed mainly in the Código de Processo Civil, was basically formed in the thirties of the last century and was rarely modified in the last eighty years. Since its return, Macau has made great achievements in economic and social development, which made it absolutely essential to review and improve the current regime. In particular, there are several issues worthy being reviewed in the existing system: Firstly, the current institutional structure of Parallel of Falencia and Insolvencia is a product of history and has been proved to be insignificant. With the rapid development of economic and the changes in the social structure, those major countries of the world have successively abandoned this practice. Secondly, Macau has not yet introduced the “Institute of Discharge/Exoneração do Passivo Restante” and the debtor is still legally required to pay the residual debt after the liquidation, which will cause damage to the debtor’s working enthusiasm and total social welfare. Thirdly, Macau has not yet adopted the regime of corporate reorganization, which has always been considered as the most effective way to save the business. Oriented by the problem consciousness, with the purpose of solving the problem, on the basis of studying the experience and lessons of extraterritorial jurisdictions, this paper tries to find the possible paths to reconstruct and improve the current Macau bankruptcy institute, making the following three suggestions: Firstly, change the current institutional structure of Parallel of Falencia and Insolvencia: one choice is adopting Germany’s practice, making the bankruptcy proceedings opened for the assets owned by any natural person or legal person; another choice is adopting Britain’s practice, designing respectively proceedings for individuals and proceedings for enterprises because the latter is, in most instances, more complicated than the former. Secondly, introduce the “Institute of Discharge/Exoneração do Passivo Restante”, which will give those honest debtors an opportunity of “fresh-start” and allow them to recover from the past financial situation as soon as possible. At the same time, to prevent this institute being abused, we should also learn from the experience of extraterritorial and formulate strict rules of application. If the rules are properly designed, the institute will not only does not harm the interests of creditors but also provide them a second chance to be paid. This will undoubtedly be very beneficial to the overall welfare of society. Thirdly, introduce the regime of corporate reorganization and provide the parties involved more opportunities of maintaining the enterprise. At the same time, these measures to prevent bankruptcy should be put in the same status as the liquidation, allowing the judge and the parties in bankruptcy proceedings to choose the most effective ways according to the circumstances of the case. It should also be noted that bankruptcy law is a dynamic field. No two situations are the same. Any analysis of formulate or revise the bankruptcy policies should be based on the circumstances and economic situation of the Region.

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Faculty of Law




Bankruptcy -- Macau

破產; 破產法規 -- 澳門



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