Identification And Exemption Of Debtor's Property In The Individual Bankruptcy System

Along with continuous development of the market-oriented economy,an increasing number of individuals have participated in activities of the market-oriented economy.This also results in increasing market risks facing individuals.For example,competition of market subjects might result in business failures,and failures of speculative behaviors,such as stock futures.As individuals borrow more mortgage loans from banks,they become heavily indebted,let alone their losses caused by natural disasters and other emergencies.These risks indirectly or directly plunge individuals into a debt crisis,and disable them to pay matured debts.Due to lack of a relief mechanism,debtors usually escape or even commit suicide to evade debts.This has seriously damaged the legitimate rights and interests of the creditor and the debtor,and upset social stability and sound economic development.Therefore,it is imperative to build an individual bankruptcy system so as to properly resolve the debt and credit disputes,Different from the enterprise bankruptcy system,the individual bankruptcy system should guarantee basic living needs of the bankrupt debtor and his ability to support his family members.For that reason,the scope of the exempt property and the property of the estate,which can be distributed,should be reasonably distinguished.Based on that,the debtor's property can be clarified and a reasonable differentiation system can be built for the debtor's property.All these are of vital significance to form a complete individual property system.Under the prerequisite that China has not yet introduced the individual property system into its law system,this paper analyzes China's practical situations and judicial practices,refers to legislation examples in other countries or regions,and discusses issues related to the scope of the debtor's property during the individual bankruptcy procedures in the hope of proposing specific suggestions for confirmation of the debtor's property scope in China's legislation of the individual bankruptcy system.Apart from the introduction,this paper consists of four parts:Part 1 introduces the individual bankruptcy system and the debtor's property so as to achieve a basic and macroscopic understanding of the individual bankruptcy system.In this part,individual bankruptcy is separated from relevant concepts,and the basic connotation of the individual property system in this paper is confirmed.Next,the historical reform,functions and the special legal position of the debtor's property are expounded,and the practical and jurisprudent significance of the individual bankruptcy system is clarified.Part 2 is an identification of the debtor's property.The generation time and scope of the debtor's property are defined.It is pointed out the debtor's property consists of exempt property and the distributable property of the estate.After that,the legal characteristics and the legislation model of the property of the estate are briefly stated.Part 3 focuses on the constitution of the exempt property of the debtor.Proceeding from the legislation style and the measurement standards,this paper thinks that confirmation of the exempt property should aim at protecting the basic survival right and the development rights and interests of the debtor's.Meanwhile,legislative modes of different countries about the scope of exempt property are listed at an attempt to provide references for China's legislation of the individual bankruptcy system.Part 4 analyzes problems existing in China's legislation status about individuals who are unable to pay off debts.Then,these problems are combined with China's national conditions,including huge regional differences and imbalanced economic development.The author thinks that China should confirm the scope of debtor's property,particularly clarification of basic principles and specific content of the exempt property,while building the individual bankruptcy system.Finally,accommodating to rights and interests of the creditor and the survival and development of the debtor,some specific legislation suggestions are proposed.