Research On Individual Bankruptcy Discharge

Discharge is the unique and core content of individual bankruptcy law.When the debtor is insolvent,the conflict of interest between the interested parties is intense.In theory,bankruptcy system should be the "pressure-reducing valve" to balance the interests of all parties.It is easy to become the "punching bag" of the parties whose interests being damaged.The design of individual bankruptcy law is akin to dancing on a knife’s edge.Without individual bankruptcy in China for a long time,Chinese scholar concentrate more on enterprise bankruptcy,and the necessity and feasibility of individual bankruptcy.On July 16,2019,the NDRC,the supreme people’s court and other 13 departments issued a reform plan,which directly proposed to build the individual bankruptcy system step by step.However,there are many works to do.liquidation is the competition among all creditors,while discharge belongs to the game between creditors and the debtor.In Chinese traditional concept,it is only natural to repay debts.And there is a lack of honesty in Chinese society.Insolvents are at disadvantage.Discharge may not be widely accepted or properly used by the debtors.In this backdrop,this paper answers three questions.First,what is the discharge? Its emergence and development,its legislative ideas and objectives,and its relationship with the bankruptcy liquidation process need to be further clarified.Second,do we need the discharge? In other words,whether there are the necessity and feasibility of discharge in China? The third is what kind of discharge system our country needs at present.Different social,cultural and economic basis result in different legislative mode,condition and effectiveness of discharge.It is important to design the discharge to make it meet the practical needs of Chinese society as much as possible.The first part of this paper starts with the history of the discharge.the modern insolvency discharge and the bankruptcy liquidation have different development track.In the early stage,the discharge still benefitted creditors.Under the influence of America’s culture of tolerance for failure,discharge began to protect the honest but unfortunate debtors,with the goal of giving the debtor a chance to Fresh Start.Due to the spread of systemic debt crisis caused by credit expansion,the modern discharge based on the principle of protecting honest debtor also emerged in many developed countries and regions.Personal bankruptcy liquidation and discharge were gradually integrated.However,the degree of tolerance still varies from countries.In the second part,this dissertation roundly analyzes the domestic background of implementing discharge.The discharge can protect the personality interests of the debtor,balance the interests of creditors and debtors,and maximize the overall interests of the society,which can be implemented by China.China’s personal debt is expanding,and the risk of personal debt crisis breaking out in key areas and key groups of people is concrete.The social security system,the exemption of the execution of property or write-off of bad debts can’t help debtors to fresh start.The improvement of property registration and personal credit reporting system lays a foundation for discharge.It is necessary and possible for China to enact individual bankruptcy law that allows debtors to obtain exemption from liability.The third,the fourth,the fifth parts design the Chinese discharge system.The third part analyses the relationship between "start strictly" and the protection of honest debtors.In order to avoid dishonest debtors from using too lax conditions to evade repayment liability,it is necessary to design stricter conditions from beginning.on the basis of the principle of protecting the good faith debtor,this dissertation designs procedures in the insolvency discharge with reference to the overseas legislation,including the legislative mode selection of discharge,the selection of good behavior period,the exemption causes,the exemption of liability and the annul of discharge.Finally,the paper tries to revise the published draft of the expert proposal,in order to help the legislation of individual bankruptcy law.