Research On Exempt Property System In Individual Bankruptcy

The exempt property system in individual bankruptcy is the embodiment of civilized modern bankruptcy system,which is established to protect the right of survival and development of debtors and their dependents.Exempt property embodies the dual protection of the interests of the debtor and the creditor.It is a significant factor to measure the modernization degree of a country's bankruptcy law.The research on the exempt property is of great theoretical and practical significance for promoting the legislation of personal bankruptcy and perfecting the legal system of bankruptcy.This article expounds in detail the core issues of the exempt property system by adopting such methods as literature analysis,comparative analysis and value analysis,including the scope of property exemption and the exercise of exempt property rights,and provides specific suggestions for the establishment of the exempt property system of our country through comparative analysis of the exempt property systems of typical countries or regions.The thesis is divided into three parts besides the introduction and the conclusion.Part one analyzes the definition and characteristics of exempt property.Exemptions in an individual bankruptcy refers to the specific property which is owned by a natural person in accordance with the provisions of laws or the ruling of a court for the purpose of guaranteeing the basic living of the debtor and his dependents,and urging the debtor to restart the business,and which is not liquidated and distributed according to the bankruptcy procedure when the bankruptcy is declared.Exempt property is essentially different from returning property and non-executable property.Different levels of economic development,different conditions of family members depending on the debtor's life and different professional needs of the debtor lead to the uncertainty of the scope of exemptions.The aim of the exempt property system is to provide the minimum living guarantee for the debtor and his dependents,so the exempt property is limited and temporary.Part two discusses the scope of exempt property in personal bankruptcy.This part sets forth the specific standards for determining the scope of exempt property,that is,the debtor can only guarantee the basic living and employment conditions of him and his dependents according to the exemptions.Through the analysis and study on two different legislative acts in many countries or regions,the thesis puts forward that the determination of the scope of exemptions of our country shall insist on taking the right to subsistence and right to development of the debtors as the core and adopt eclectic legislative mode;the specific scope of exemptions of our country shall include three parts: the property that ensures the basic living of the bankrupt and his dependents,the property that ensures the bankrupt to restart and the special property.The properties obtained by a debtor after-acquired mainly include labor remunerations and other properties.Part three explores the exercise of exempt property rights in personal bankruptcy.The key to the exercise of exempt property rights is to balance the interests between the debtor and the creditor through the establishment of procedures.Therefore,the applicants for exemptions of our country shall be subject to qualification restrictions according to the current property and wage income of the debtors.For the establishment of application procedures and objection procedures,the relevant provisions of the Enterprise Bankruptcy Law may be referred to,and debtors are allowed to voluntarily waive their exempt property rights,while the right to objection of their dependents shall be protected.Finally,as to the special issues in the process of exercising the right of exempt property,namely,the recognition of exempt property as the pledge and the act of converting non-exempt property into exempt property of the debtor before bankruptcy,the reasonable scope within which the debtor may exercise the right of exempt property shall be clarified in the legislation.