중국의 청산방해죄 성립요건에 대한 법리해석과 판례분석

Due to long-term global economic recession and financial difficulty, many companies have withdrawn from China. However, liquidation procedure is not only so long but also complicated while taking so long a time required. The friction caused from the relationship with regional government, employee, and creditors makes the liquidation procedure take long time to be settled. Even at a normal liquidation procedure, judicial decision judgement may be different from the provisions of the related law, causing physical and economic damage to executives who are in bankruptcy. China’s jurisdiction is under the principle of legality and is based on grammatical interpretation. When, therefore, we interpretate liquidation obstruction in the clause 162 of criminal law, the act of obstructing liquidation, which cause economic damage of over 100,000 RMB, comes to violation of the criminal law. Referring to judicial precedent of many years, however, actual judicial analysis is different from the clause. The purpose of legislation is preferred to grammatical interpretation in the court of law. In order to preserve the order of society and public interest, the machinery of law apply the clause of liquidation obstruction, even though a company is not under liquidation procedure yet but is under effectively. Contrary to the clause 14 of criminal law, willful negligence can be sentenced to violation of liquidation obstruction clause. Under the “Rule of standardizing public prosecution of economic crime” which was made by Supreme People’s Prosecution and Public Security Department, the violation of liquidation obstruction is applied. Judical Branch is believed to solve the problems. Under the condition that social responsibility is strongly needed, however, and under Chinese central government’s policy of punishing the act of harming social order severely, meticulous care is required in advancing liquidation, in order to prevent damages.