The Research On The System Of Rehabilitation In Personal Bankruptcy

As the first personal bankruptcy law in Chinese mainland,the Regulations of Shenzhen Special Economic Zone on Personal Bankruptcy which officially implemented on March 1,2021,has established the basic prototype of the system of rehabilitation in our country’s personal bankruptcy.But there are still some institutional problems,such as inconsistent bankruptcy rehabilitation measures,inappropriate length of bankruptcy rehabilitation period,incomplete design of bankruptcy rehabilitation procedure,and improper configuration of the legislative model for bankruptcy rehabilitation,resulting in the failure to fully protect the rights and interests of debtors in personal bankruptcy procedure,which urgently need to be further adjusted and improved.The contradiction between the modern concept of bankruptcy relief and the traditional concept of bankruptcy guilt,the procedural conflict between the bankruptcy rehabilitation system and the bankruptcy exemption system,the lack of criminal means to regulate personal bankruptcy crime,and the neglect of the bankruptcy rehabilitation on the experiment of personal bankruptcy procedure,all had their effects on the construction of our country’s personal bankruptcy rehabilitation system to some extent.But among them,Articles 21,23 and 86 of the Regulations of Personal Bankruptcy set up two different bankruptcy rehabilitation measures according to the content of the bankruptcy restriction measures,which is the main reason for the major defects in our country’s personal bankruptcy rehabilitation system.From the perspective of comparative law,the reason why mixed rehabilitation doctrine has become the major trend of the choice of legislative model of modern personal bankruptcy rehabilitation system is not that mixed rehabilitation doctrine integrates the respective advantages of acquiesce rehabilitation doctrine and permit rehabilitation doctrine,but the legislators realize that different bankruptcy rehabilitation measures should be applicable to different legislative models of bankruptcy rehabilitation system.Therefore,the Regulations of Personal Bankruptcy should first take the bankruptcy rehabilitation decision as a unified measure for the bankruptcy debtor to get rehabilitation in personal bankruptcy procedure,then add debt relief,settlement,expiration of bankruptcy rehabilitation period and termination of bankruptcy procedure as the acquiesce rehabilitation conditions for the court to make the above-mentioned decision,and list debt discharge as the permit rehabilitation condition,so as to reconfigure the legislative model of mixed rehabilitation doctrine in which the acquiesce rehabilitation doctrine is the main and the permit rehabilitation doctrine is the supplement,according to the legislation of Japan.In addition,the period of pending investigation for exemption of the debtor’s unliquidated debts should be extended from 3 years to 5 years.On this basis,a 7-year acquiesce rehabilitation period for the non-exempt debtor and a 10-year disciplinary period for personal bankruptcy crime should be established.Moreover,the Regulations of Personal Bankruptcy can adjust the bankruptcy rehabilitation condition of debt relief to the time when the bankruptcy exemption ruling becomes effective,bring the non-exempt situation into the design scope of permit rehabilitation procedure,and establish bankruptcy fraud crime and rehabilitation revocation procedure for bankruptcy fraud criminals,etc.These are the humble views that can further protect the rights and interests of bankruptcy debtors and improve the system of rehabilitation in our country’s personal bankruptcy.