破产是通过国家权力的介入,解决当事人之间债的关系的特别制度。然而,它又有别于同样借助国家权力,使有既判力裁判所确认的债权得以实现的强制执行程序。在一般情况下,当事人的债务纠纷,是可以通过直接自力救济或者民间力量的斡旋,获致解决的。如果上述方式不敷需要,还可以通过民事诉讼特别是给付之诉求得公力救济。另外,如果债务清楚无争,也可以直接通过督促程序,请求强制执行债务人的财产。然而,上述两项普通程序,通常不能涉及被告的案外债务;另外,则须以被告的清偿可能,作为运用的必要条件;而且,在程序的最后阶段,债务人的主体资格并不消灭。这就决定了,如果债务人陷于清偿不能,它们通通无地用武。于是,经济生活呼唤在债务人清偿不能时对债权救济的制度创新。破产制度由是生焉。该制度以清理债务人的全部财产,以之为债权满足的标的;在其最终阶段,还要消灭债务人的商事资格。可见,破产程序启动的条件,是债务人清偿不能,而其制度功能,则在最大限度地实现金钱债权。 Bankruptcy is a special system for settling the relationship between the parties through the intervention of state power. However, it differs from the same enforcement procedure that relies on the power of the state to bring about the claims recognized by a referee. Under normal circumstances, the parties' debt disputes can be resolved through direct self-help or mediation by the private forces. If the above methods do not meet the needs, but also through civil litigation, especially to pay the public appeal for help. In addition, if the debt is clear, it may also be possible to request enforcement of the debtor's property directly through the supervisory process. However, the above two common procedures can not usually deal with the defendant's extra-debt obligations; in addition, the defendant's liquidation must be made as a prerequisite for its application; furthermore, the debtor's eligibility does not disappear during the final stages of the proceedings. This determines that if the debtors are unable to pay off their debts, they will useless force. As a result, economic life calls for institutional innovations in the relief of claims when debtors are unable to pay. Bankruptcy system is born Yan. The system cleans up all the debtor's property to the satisfaction of its claims; at the final stage, it also eliminates the debtor's commercial qualifications. Can be seen that the conditions for the commencement of bankruptcy proceedings, the debtor can not pay off, and its system functions, then, to maximize the realization of money claims.