中国个人破产制度立法研究

Abstract

One of the core structures of the personal bankruptcy system is exemption. That is through the exemption of remaining debts to rebirth the honest but unfortunate debtors. Whether it has a sound personal bankruptcy system has become an important indicator of the degree of development of an economy’s Bankruptcy Law. But how to choose a personal bankruptcy system which can suits China’s national conditions is the key to establishing China’s personal bankruptcy system. In the current drafting process of the 2007 Bankruptcy Law, there are also suggestions to include personal bankruptcy in the Bankruptcy Law. However, at that time, is was difficult to promote the establishment of a personal bankruptcy system with different understandings of corporate bankruptcy legislation. According to statistics from the Supreme Court of China, more than 1/3 of the cases that have no property to enforce. According to the statistics of these cases, there are a large number of individuals who are “insolvent and unable to pay off their debts”. These individuals need a roll-out procedure to help the rebirth. For a long time, Chinese society has very different perceptions and consensus on personal bankruptcy. There are roughly three objections. Ones is whether the socialist country can allow a personal bankruptcy system; the second is China’s traditional concept that “repaying debts is justified”; the third is that China’s personal credit system is not perfect and the establishment of a personal bankruptcy system if it is, it would be easy used by malicious debtors. After a long-term dispute, on February 27, 2019, in Article 11 of the Five-Year Reform Program for Court Enforcement Work, the Supreme Court proposed “Promote the Improvement of the Enforcement Legal System and Supporting Systems, and Launch a Pilot Program with Functions Equivalent to the Personal Bankruptcy System” recommendations. After that, local courts successively issued regional enforcement guidelines, and Shenzhen also implemented local legislation. The exploration of the personal bankruptcy system in various parts of china has provided useful experience for improving the bankruptcy legal system and promoting the promulgation of the personal bankruptcy law. However, the above work still has some limitations: firstly, the differentiation of local systems is very likely to lead to the emergence of “bankruptcy immigrants”, secondly, the implementation opinions issued by local courts stipulate the disposition of personal property, but the qualitative nature of personal property is not clear and lacks effectiveness. The legal basis for this; thirdly, there are difficulties in determining the level of the court of jurisdiction for personal bankruptcy cases; and finally, there is a lack of supervision of debtors. In recent years, the Supreme People’s Court of China and relevant government ministries have actively promoted the introduction of systems related to personal bankruptcy, market entity withdrawal, and other personal bankruptcy-related systems, which laid the policy foundation for the promulgation of the Personal Bankruptcy Law. The timely promulgation of the personal bankruptcy cases a legal basis, but also improve China’s bankruptcy legal system. This article finally puts forward 8 suggestions on China’s personal bankruptcy law legislation, including legislative model, liquidation procedures, free property, immunity system, and special bankruptcy courts.