Research On The Personal Bankruptcy Restoration Syste

With the development of society,the concept of consumption and investment of residents has gradually changed,the convenience of financial services has been continuously improved,and the business model and products of the financial industry have been continuously diversified.It is a common phenomenon that the whole society improves their lives and carries out production and business activities through appropriate borrowing.It is not uncommon for individuals to be trapped in the debt vortex.Therefore,in order to balance the interests of debtors,creditors and society,and promote the“honest and unfortunate debtors"to return to normal social and economic life,the important function of personal bankruptcy proceedings is becoming more and more obvious.The core mechanism for personal bankruptcy to promote the bankruptcy debtor’s nirvana and "fresh start" from the huge debts that cannot be paid off is the bankruptcy restoration system.While the national unified personal bankruptcy legislation has not yet been promulgated,the regulations on personal bankruptcy in Shenzhen Special Economic Zone implemented on March 1,2021 has made special provisions on the bankruptcy restoration system,but the overall design is relatively simple,and there are still room for improvement.In view of the important value of the individual bankruptcy restoration system for the individual bankruptcy legislation,this paper will,based on the existing theoretical achievements and practical experience,and in combination with the contemporary social situation and objective needs of China,first try to clarify the historical origin and evolution of the individual bankruptcy restoration system,the system overview of the two legal systems,and the system exploration and practice obstacles in New China through in-depth and systematic research,On the basis of the social and economic analysis of the individual bankruptcy restoration system,this paper puts forward the theoretical basis,basic ideas,institutional framework and docking mechanism for the construction of China’s individual bankruptcy restoration system.In addition to the introduction,the full text is divided into five chapters.The first chapter is "Historical tracing and development overview of individual bankruptcy restoration system".This chapter first analyzes the origin and development of the overseas personal bankruptcy restoration system in ancient and Middle Ages,and points out that the obligation of debt repayment(three-year servitude)and the restoration of personal rights stipulated in Hammurabi code can be regarded as the origin of the personal bankruptcy restoration system.In ancient Roman law,there has been a system of "breaking the shame"similar to the debtor’s bankruptcy and loss of rights in the period of procedural litigation and extraordinary litigation,which is also very similar to the function of the bankruptcy restoration system.The commercial customary law system in the middle ages has preliminarily distinguished the personality of natural person from that of businessman,and used independent property to bear the responsibility of commercial bankruptcy.This chapter then gives a brief introduction to the individual bankruptcy restoration system in some parts of civil law system and common law system.Finally,it traces the origin of the bankruptcy system in ancient and modern China,collects the relevant written documents about bankruptcy and rehabilitation system in some dynasties’ debt laws,combs the development context of China’s modern bankruptcy system,analyzes the reasons why ancient China failed to produce the personal bankruptcy system,and analyzes the positive significance and transformation of traditional legal concepts in the construction of modern bankruptcy rehabilitation system.The second chapter is "he exploration and practice obstacles of personal bankruptcy restoration system in New China".This chapter first discusses the alternative measures in the absence of individual bankruptcy restoration in New China from the aspects of the development of the bankruptcy restoration system in New China,the actual needs of the individual bankruptcy restoration system,and relevant alternative measures.Then it systematically combs and analyzes the provisions on individual bankruptcy restoration in the implemented regulations of Shenzhen Special Economic Zone on individual bankruptcy,summarizes the ways and procedures of Shenzhen bankruptcy application,the implementation of bankruptcy application,the basis for court acceptance and the implementation of loss of rights restoration in combination with public information,and makes a brief introduction and evaluation of typical bankruptcy cases,This paper analyzes the factors that influence the choice of different bankruptcy systems and the differences in the rehabilitation procedures.Finally,it summarizes and sorts out the practical obstacles of China’s personal bankruptcy restoration system,mainly including the fact that the public has a low awareness and acceptance of personal bankruptcy restoration through questionnaire survey,analyzes the deficiencies of the personal bankruptcy restoration system in view of local legislation,and points out the lack of docking mechanism with other legal procedures.The third chapter is“The social situation and utility analysis of the construction of individual bankruptcy restoration".This chapter first uses the social analysis method to briefly summarize the main social situations that contemporary China has to face in building the right to personal bankruptcy restoration,such as the increasing risk appetite of consumption and entrepreneurship,the deep impact of information technology on social and economic life,social security as everyone’s basic needs,and the progress of the rule of law to promote the transformation of public legal concepts.Then,the economic analysis method is used to analyze the utility of the personal bankruptcy restoration system.The focus of the analysis mainly includes the legal and economic analysis of the causes of personal bankruptcy,the utility of the bankruptcy restoration system to the debtor,the utility of the bankruptcy restoration system to the creditor and the overall social utility of the bankruptcy restoration system.The above analysis from different angles can finally come to the conclusion that the benefits of implementing the bankruptcy restoration system are greater than the costs.Social analysis and economic analysis help to further prove the practical necessity of speeding up the construction of a unified national personal bankruptcy legislation and its restoration system from the theoretical level.The fourth chapter is“The theoretical basis and basic idea of the construction of individual bankruptcy restoration".This chapter first discusses the theoretical basis of the construction of individual bankruptcy restoration.From the perspective of the evolution and development of relevant global systems,the concept of human rights,the overall interests of society,and the theory of "saving honest and unfortunate" debtors have a great impact on the personal bankruptcy system.Therefore,although the theoretical basis for the construction of China’s contemporary individual bankruptcy restoration system involves all aspects,the most important thing is to base on the function transformation from creditor protection to debtor regeneration,the overall social benefit standard in the consideration of cost-benefit,and accurately grasp that respecting human rights is an inevitable requirement for the construction of the rule of law civilization.Then it discusses the basic concepts of the construction of China’s contemporary personal bankruptcy restoration system,which are mainly summarized as the combination of respect for human rights and fairness,the combination of practicing the rule of law and balancing interests,the combination of reference and absorption and local characteristics.The fifth chapter is“The construction ideas and docking mechanism of the individual bankruptcy restoration system".First of all,this chapter analyzes the mode choice of China’s contemporary individual bankruptcy restoration system,and points out that the national unified bankruptcy legislation should be adopted in the legislative mode to construct the individual bankruptcy restoration system;In the start-up mode of bankruptcy restoration,we should adopt a mixed restoration mode combining permitted restoration and ex officio restoration,in which the bankruptcy reconciliation and bankruptcy liquidation procedures should adopt the permitted restoration mode,and the bankruptcy reorganization can adopt the ex officio restoration mode.Secondly,this chapter discusses the substantive content of the personal bankruptcy restoration system,mainly including paying attention to the coordination and docking of the loss of rights;A reasonable definition of the subject scope of individual bankruptcy recovery rights should include consumers,individual and organizational businessmen,bankrupts and quasi bankrupts,but should not include the subject of inheritance;Scientifically design the conditions for individual bankruptcy restoration.Thirdly,this chapter discusses the procedural content of the personal bankruptcy restoration system,mainly including the procedure design of permission restoration,the procedure design of natural restoration and the declaration procedure of bankruptcy restoration.Finally,this chapter briefly considers the docking mechanism of the personal bankruptcy restoration system,mainly including the docking of bankruptcy restoration and civil enforcement,the docking of bankruptcy restoration and criminal punishment,and the docking of bankruptcy restoration and extraterritorial justice.