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本文根据《破产法》和《民事诉讼法》的理论和相关法律法规,立足于司法实践,对于破产派生诉讼中的管辖、诉讼主体、诉讼中止、调解程序以及涉及债务人执行案件中止等具体问题阐明了自己的观点。笔者认为,破产派生诉讼案件属于专属管辖案件,该类案件中进入破产的一方(债务人)诉讼主体应为破产的企业法人而非破产管理人。将破产受理时已经开始但尚未终结的破产派生诉讼长期搁置的作法是错误的,在管理人接管债务人财产后上述派生诉讼就应该及时恢复审理。破产派生诉讼中调解协议涉及债务人财产的必须经债权人会议或债权人委员会通过。
Based on the theories of “Bankruptcy Law” and “Civil Procedural Law” and related laws and regulations, this paper bases on judicial practice to clarify the specific issues such as jurisdiction in bankruptcy lawsuit, subject of litigation, suspension of litigation, conciliation procedure and suspension of execution of debtor My point of view. The author believes that the case of bankruptcy derivative litigation belongs to the exclusive jurisdiction of the case, the bankruptcy into the party (debtor) the subject of litigation should be a bankrupt corporate legal person rather than the bankruptcy administrator. It is a mistake to hold a bankruptcy derivative litigation that has already started but not yet ended in bankruptcy proceedings and is suspended for a long time after the administrator took over the debtor’s property. The bankruptcy derivative suit in the mediation agreement involving the debtor’s property must be approved by the creditors ’meeting or the creditors’ committee.