Study On The Exemption System In The Personal Bankruptcy

The paper focus on the scope of the exempt property and the exercise of the exempt property rights in the exemption system by research methods of historical analysis, comparative study, value analysis and so on. With a comparative study of the advanced exemption system in main countries and key regions in the world, and considering China’s national conditions, this paper makes some legislative proposals on the construction of the future exemption system in order to improve the future personal bankruptcy, thus, improving China’s bankruptcy legal system.In addition to the introduction, there are four parts in this paper.The first part is an overview of the exemption system and the basis of this paper, for a basic and macro understanding of the exemption system. Starting with the history of the exemption system, this part states that there are differences in the broad and narrow sense of exempt property by comparing it with the property of the estate, the bankruptcy property, the retrievable property, and the unenforceable property. This paper discusses the exempt property in the narrow sense, and further analyzes its features. In the end of the part, this paper is to elaborate the importance of the exemption system. The exemption system is the embodiment of the subsistence rights and development in bankruptcy laws, and it is the symbol of social civilization and progress.The second part of the paper mainly discusses the scope of the exempt property, covering the key and difficult points in this paper. First, this part makes clear the standards of the exempt property, including what living standard we should provide for the bankrupt and to what extent we should help the bankrupt to start by providing material assistance. Then, through the comparative study of the scope of exempt property in some typical countries which adopt two different legislative ways, the author points out that China should regulate the scope of the exempt property by listing and should limit the value of the exempt property. Conversion of the exempt property should never be banned in principle, but the intention of conversion should be judged precisely. Last, this part designs specifically about the scope of the exempt property, and there are three parts, including the property to meet the basic needs of the bankrupt and the relatives supported by them; the property that the bankrupt’s occupation requires; the property specially linked to the bankrupt. The third part mainly discusses the exercise of the exempt property rights. The United States of America, as a representative of Anglo-American law system, not only has regulated the substantive issues of the exempt property in detail, but has designed a very complete set of operating rules in procedure as well, which is incomparable in civil law countries. By making example of the procedural provisions in the United States law and taking into consideration China’s specific national conditions, this part elaborates the subject of the exempt property rights, the application procedures of exemption, the rights to dissent in exemption, and so on. In real world, creditors may require debtors to pay off the debts with exempt properties. The author holds that this shouldn’t be permissible at any time; otherwise, the value of the exempt property will be shaken. As for whether the debtor can use the exempt property to pay off the debts, it depends on the willingness of the debtor. The settlement should first ensure the basic living conditions of the bankrupt, and the disposition of the exempt property can never endanger the survival of the relatives supported by the bankrupt.The fourth part is closely linked to China’s national conditions, such as vast territory, regional differences, and unbalanced economic development, and makes example of the mature legislative systems in foreign countries, in order to put forward some practical legislative suggestions and draw up some relevant legislative provisions of the exempt property.