關聯企業實質合併破產規則之再審視

Re-examining the Rules of Substantive Amalgamation of Affiliated Enterprises

關聯企業實質合併是各國破產實踐的探索產物。囿於沒有統一、成文之規範，實質合併一直存在從屬於人格否認抑或具有獨立價值之辯中。最高人民法院發布的關聯企業實質合併指導性案例從司法層面確認了實質合併的獨立地位，並提出判斷實質合併的「三要素」標準。但其裁判要點和說理方式仍未脫離與人格否認的糾纏，同時還存在突破慎用之「底線」的漏洞，亟需透過成文法形式對實質合併的前提、程序、效果予以完善。

The substantial amalgamation of affiliated enterprises is the product of bankruptcy practice in many countries. Due to the lack of uniform and written norms, substantial amalgamation has always been a debate on whether it is subordinate to the denial of personality or has independent value.The guidance case issued by the Supreme People’s Court confirms the independent status of the substantive amalgamation from the judicial level, and puts forward the “Three Elements” standard. But the main points of judgment and the way of reasoning are still entangled with the denial of personality, and there is also a loophole to break through the “Bottom line” of careful use. It is urgent to perfect the premise, procedure and effect of substantive amalgamation through the form of written law.