中國의 破産制度에 관한 硏究 - 個人破産立法을 中心으로 -

Abstract

As an important law to normalize market economy, most countries in the world had constructed bankruptcy system for all the subjects of the market. We will found that individual bankruptcy system is the origin of the bankruptcy system if we review the history of development of bankruptcy system, which exists in the whole development process of bankruptcy system. The bankruptcy legislation started relatively late in China. Not any question at present to the capabilities of an enterprise’s bankruptcy. However, it is a shortcoming of the bankruptcy legislation in China that non-legal person enterprises, individual business, partnership of individuals, and individuals don’t have the ability to bankruptcy. Lacking a perfect bankruptcy system will unquestionably hinder the economic development in China, especially in the intense economy of an integrated world market after China joined the WTO. At present, China’s social and economic environment is very different from the past; there have been fundamental changes, it is necessary and feasible to establish the individual bankruptcy system. Therefore, China should learn from foreign countries mature and perfect system of individual bankruptcy, the general bankruptcy legislative model should be applied in our bankruptcy law, individual bankruptcy should be brought into its adjustment scope, and a complete set of legal system should be established to prevent its passive effect. In this article, with the whole Chinese development process of bankruptcy system inspected, and the necessity and feasibility of individual bankruptcy system discussed, the basic legislative direction of individual bankruptcy promulgated, the more mature concrete legal regime for the overseas individual to go bankruptcy was elaborated, such as application system, bankruptcy property system, free property system, reconciliation system, exemption system and rehabilitation system in individual bankruptcy.