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Research On Legal Issues Of Personal Bankruptcy Exemption System

Posted on:2023-05-11Degree:MasterType:Thesis
Country:ChinaCandidate:X Z WuFull Text:PDF
GTID:2556306797487394Subject:legal
Abstract/Summary:PDF Full Text Request
The exemption system is a special system in the personal bankruptcy legal system.Theoretically,an individual must continue to bear the repayment responsibility for the outstanding debts after bankruptcy,so personal bankruptcy does not necessarily lead to the result of exemption.Exemption is a secondary adjustment tool to personal bankruptcy.Debtor cooperation theory,social utility theory,limited liability theory and risk allocation theory provide theoretical support for personal bankruptcy exemption system.From a practical point of view,it is really necessary for China to establish a personal bankruptcy exemption system.The rapid development of consumer credit business makes individuals face serious debt problems,and the amount of personal non-performing loans has increased sharply.Entrepreneurs bear huge debts because they are jointly and severally liable to enterprises.The individual industrial and commercial households,which account for the vast majority of the market players,face high risks and are difficult to start again once they fall into debt difficulties.The problem of "difficult execution" in judicial practice needs to be solved urgently.Among them,"honest" debtors urgently need a way out to obtain debt forgiveness.At the same time,China has the feasibility of constructing the personal bankruptcy exemption system.The development of personal credit reporting system and personal property registration system has created good conditions for the construction of the system.Local laws and regulations such as the Shenzhen Special Economic Zone Regulations on personal bankruptcy and the "centralized liquidation of personal debts" have accumulated legislative and judicial experience for system construction.However,there are still some problems in the personal bankruptcy exemption system in the pilot areas.First,the applicable standard of exemption is not clear,mainly the problem of how to embody the requirement of "honesty".Second,the design of the investigation period is unreasonable,mainly in terms of the duration of the investigation period,the debt repayment incentive mechanism during the investigation period,and the degree of restriction on the debtor during the investigation period.Third,the effect of exemption is not comprehensive.There are omissions in the provisions on the scope of liability exemption,and the effect of liability exemption on creditors and debtors is not clear in all regions.Fourth,the rules of revocation right are not perfect.Local regulations do not distinguish criminal acts from general illegal acts,and the rules during the exclusion period are unreasonable.In the future legislation,China should combine its national conditions,learn from the experience of foreign legislation,refer to the rules of the pilot of centralized liquidation of individual debts in various regions,and take the regulations of Shenzhen Special Economic Zone on individual bankruptcy as the blueprint to improve the problems in the pilot areas.The first is to specify the conditions for exemption from liability from the positive side with a general statement,and then list the behaviors that are not exempt from liability.The second is to set a longer investigation period,reduce the minimum repayment proportion requirements of the debt repayment incentive mechanism during the investigation period,and relax the restrictions on the debtor’s behavior and practice during the investigation period.The third is to delimit a narrower scope of liability exemption to supplement the effect of liability exemption on creditors and debtors.Fourth,when designing the rules of revocation right,we should distinguish between bankruptcy fraud and general illegal acts.
Keywords/Search Tags:personal bankruptcy, bankruptcy exemption, legislative
PDF Full Text Request
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