中国个人破产重整程序的建构

Abstract

In the 2004 revision of the Enterprise Bankruptcy Law, some experts and scholars suggested that a personal bankruptcy system be included, but it was not adopted at that time because the conditions were not yet ripe. In recent years, for more and more natural persons in the market economy in the loss of debt solvency, the market economy resource allocation under the personal bankruptcy system is indispensable to the existence of the system. Based on the specificity of the contradiction, China first introduced the Shenzhen Special Economic Zone Personal Bankruptcy Regulations (hereinafter referred to as “Shenzhen Bankruptcy Regulations”), and set up three modes of bankruptcy liquidation, settlement and reorganization. However, personal bankruptcy should not only protect the “honest and unfortunate” debtor but also safeguard the interests of creditors and achieve a balance of interests between the two. Therefore, reorganization procedure will become the main mode of bankruptcy in China in the future. Marx once said “dialectics in the existing things in the affirmative understanding of the existing things at the same time contains the negative understanding of existing things”, “Shenzhen Bankruptcy Regulations” although the reorganization procedures for the relevant provisions, but because of various limitations, the provisions of the more conservative, especially reorganization procedures for the procedure of the legislative model, the procedure of the main body of the program, the implementation of the procedural program and the procedure of the legislative model, the main body of the program, the implementation of the program of the program and the procedure of the reorganization procedure, the reorganization procedure is the main mode of bankruptcy in China.However,due to various limitations, the provisions are relatively conservative, especially the provisions on the legislative model of the procedure, the subject of initiation of the procedure, the implementation of the procedural program, and the safeguards for the procedure after the event. In terms of the legislative model, China has adopted a two-track,free-choice legislative model, which is in line with China's legislative model at the present stage, but allowing the debtor to freely choose the bankruptey.procedure will lead to procedural abuses and infringe upon the interests of the creditors at the same time. In terms of the subject of initiation of the procedure, the subject of application mainly applies to commercial natural persons, with some regions including individual industrial and commercial households, but on the whole, not all natural persons are taken as the subject of application of personal bankruptcy, and in terms of the subject of application, it is mainly proposed by the debtor, and the creditors are not yet qualified to apply. In terms of the implementation of the procedural program,the materials submitted are the same, and there is no bifurcation of the procedure, and the same execution period is set. In the procedure of the aftermath of the security,has not yet established a perfect personal property registration system, easy to lead to the debtor to hide the property, not only violates the rights and interests of creditors and reduce the improvement of the social credit system. Hereby, this paper will be from the United States, Germany, Japan and South Korea's legislation for comparative study, in the procedural mode of the implementation of the two-track system to limit the choice of type, the formulation of the corresponding conditions to limit the choice of the debtor to choose their own mode of insolvency. In the process of starting to expand the scope of the applicable subject and the scope of the subject of the application, in the subject of the applicable subject, will be stipulated in the Civil Code of the natural person into the personal bankruptcy applicable subject, in the subject of the application, granting the creditor to put forward the right of bankruptcy and reorganization. At the same time, taking into account the principles of efficiency and fairness, in the implementation of the procedural program, according to the different reorganization procedures, respectively, different types of programs are formulated to be approved and set up the corresponding implementation period. Finally set up the corresponding aftermath safeguards so as to provide reference for the formulation of China's personal bankruptcy law with Chinese characteristics.