중국 장수성(江苏省) 우시시(无锡市) 중급법원의 ‘개인파산제도기능에 상당한 시범지역 업무지침(시행)(2022년)의 연구 -개인파산법 전단계로서 법원의 개인채무정리 입법의 최근동향-

Abstract

This paper surveys the Guidelines on ‘Pilot Program with Functions Equivalent to the Personal Bankruptcy System’(for Trial Implementation)(‘与个人破产制度功能相当’试点工作指引(试行))(2022)(hereafter the guidelines), which have been recently implemented as a preliminary step to personal bankruptcy law since 2022 by the Intermediate Court of Wuxi City, Jiangsu Province, China. As the current law of personal bankruptcy, China has only the Enterprise Bankruptcy Law(2006) and the Regulations of Shenzhen Special Economic Zone on Personal Bankruptcy(2020). As yet, the Regulations regarding personal bankruptcy exist only in local ordinances(only in Shenzhen) and the national law has not been enacted, so personal bankruptcy is not possible in other regions. Accordingly, several local courts at each level established regulations on personal debt clearance procedure as a preliminary step, and this article examines a more recent legislative example for procedure of personal debt clearance in the name of Guidelines on Pilot Program. In particular, we focused on the contents in general(II) and the contents of the provisions(III). The guidelines dealt with by this paper are comprised of 5 chapters and in total 67 articles. The contents of every chapter are as follows: general provisions(Chapter 1), petitions and acceptance(Chapter 2), trustees(Chapter 3), property of the debtor(Chapter 4), and procedure for clearance(Chapter 5). This paper deals with the guidelines chapter by chapter. In the contents in general(II), we survey first the legislative and scholastic efforts. Next, we deal with the composition, specific examples of application, and their significance, in turn. In the contents of provision(III), we also survey two types of procedures for clearance, liquidation procedure, and reconciliation procedure, along with petitions and acceptance in the court. The guidelines are a condensation of the court's relatively recent experience in personal debt clearance while referring to the current bankruptcy laws, regulations, and other existing court guidelines. The composition and provisions are similar to the current Enterprise Bankruptcy Act and the Regulations of Shenzhen and in this respect, in order to be integrated of the enterprise bankruptcy law and debt clearance procedures into a personal bankruptcy in the future. the guidelines gives us several implications in the composition and contents of bankruptcy procedures for a unified bankruptcy law.