| With international globalization and increasingly frequent exchanges and transactions between countries,various personal debt and debt crises caused by the repeated economic recession caused by the ravaging COVID-19 pandemic and the intensification of business risks have become more prominent.From the perspective of judicial practice,the effective settlement of personal debt disputes can not be fundamentally solved only by the current civil execution and distribution procedure.The personal bankruptcy crisis caused by investment error,insolvency,payment failure and other factors has become an urgent problem to be solved.At the same time,the personal bankruptcy system of western developed countries is gradually perfect and mature.Accordingly,our law only has "enterprise bankruptcy law".The personal bankruptcy related law has not yet been legislated.That is,the personal bankruptcy system has not yet been established in our law.This reflects the lack of personal bankruptcy system in Chinese legislation,which also becomes a key consideration in the legislative process.In order to further promote the comprehensive and healthy development of Chinese market economy and better promote our economic construction into international competition,we urgently need to build a complete individual bankruptcy system.Individual bankruptcy system can create effective,one-time solve the problem of creditor’s rights and debts between the creditor and the debtor,precise and rapid disposal due to insolvency,payment cannot be caused by the debt disputes,as far as possible to maintain creditors legitimate rights and interests of the debtor and are not subject to any damage or loss,less is creditor’s rights debt disputes,to avoid the need of social risks,maintaining social justice.The personal bankruptcy system aims at those who are "honest but unfortunate" and still contribute to the social economy in the future.By rescuing those who are unable to repay,and who are honest and unfortunate in debt,the personal bankruptcy system also preserves the basic living security of the debtor and guarantees the debtor’s basic rights including the right to survival and development to the greatest extent.The establishment of personal bankruptcy system can fully maintain the healthy development of our market economy,is beneficial to the overall social economic recovery,realize the maximization of the interest of the whole market economy main body,reflects the just and equal legal theory idea,and is to comply with the development trend of international and global economic integration.The establishment of the personal bankruptcy system can effectively fill the legislative gap in China’s bankruptcy legal system,and it is necessary to further establish and perfect our bankruptcy legislative system.At the same time,The humanistic care embodied in the personal bankruptcy Law not only restrains the debtor but also restrains the creditor,which has great social significance to strictly prevent the malicious lending,and makes it an important aspect of constructing the honest society,the progress of The Times and the harmonious society.As the inevitable requirement of the objective economic law of modern society and the inevitable trend of the development of The Times,the construction of the personal bankruptcy system reflects the respect of human rights in contemporary civilized society.At present,with the development of modern economy and society,under the joint promotion of external and internal factors such as enterprise bankruptcy system,social security system,social personal credit investigation system and the development of civil and commercial affairs enforcement system,the construction conditions are gradually becoming mature.A stone from another mountain can attack jade.Compared with domestic,foreign personal bankruptcy system in a long period of development has produced many valuable results,the development has been relatively mature.Foreign countries with mature legislative theory and judicial practice of personal bankruptcy system,such as USA and UK,provide useful experiences for the establishment of personal bankruptcy system in China.Of course,the establishment of personal bankruptcy system is inevitably affected by social conditions,historical development and other factors.At present,we should combine the national situation of our country,in-depth analysis of the excellent experience of foreign legislation in personal bankruptcy system,and focus on the study of the procedural system and entity system in the legal system of personal bankruptcy of the world,do not copy,do not imitate,choose to transplant and innovate.Through the combination of theory and judicial practice,construct the most suitable legislation system.In this paper,on the basis of predecessors’ research further in-depth research and analysis,advantages fully draw lessons from domestic and international mature legislation and judicial practice experience,committed to combining with China’s actual situation to solve problems in the process of development,combined with the shenzhen personal bankruptcy ordinance enacted to implement and shenzhen,guangzhou,ningbo and other places in personal bankruptcy case,the bankruptcy of the judicial practice in some pilot trial We will make better progress in legislative work.It mainly includes the following aspects:First,conforming to the characteristics of the development of Chinese times,the effective repayment of various kinds of debts by positive reorganization,and the fair distribution and effective circulation of personal property and debts through timely liquidation should be the legislative guidelines for the construction of our personal bankruptcy system.The system dividend designed and operated by the personal bankruptcy system can effectively safeguard the basic rights and interests of creditors,reasonably guide debtors to consume rationally,and fully balance the interest relationship between creditors,debtors and third parties by legal means to ensure the fairness of interests of all aspects.Secendly,In the procedural design of the personal bankruptcy system,the interests of creditors shall be comprehensively protected through the design of relevant procedures.If different according to individual economy and sheets,the debtor in the bankruptcy of the court appointed management institution or bankruptcy administrator professional debt repayment more consultation,the selection of the inside and outside the judicial debt clearing procedure,choose reasonable,applicable and appropriate way of debt disposal,in a timely manner to carry out the liquidation distribution,ensure the liquidation of the creditors to obtain as much as possible.Lastly,In terms of the entity system design of the personal bankruptcy system,the basic conditions and application conditions for the debtor to obtain the bankruptcy exemption rights and interests should be clearly stipulated when constructing the exemption system.While encouraging positive repayment,it clearly stipulates that the length of bankruptcy exemption period is practically related to the repayment ratio of the debtor;In the construction of the loss of right recovery system,in addition to the illegal behavior of the debtor divided by the loss of right punishment,should be actively publicized for the public cognitive reference,or registered in their personal information files for future reference;In the construction of the free property system,we should clearly stipulate the scope of cancellation and offset of free property,and limit the consumption level of the debtor declared bankrupt.At the same time,a perfect personal bankruptcy system needs a comprehensive,stable and accurate external supporting environment in order to fully release its institutional dividends.The establishment and improvement of external security systems such as the social and personal credit system for real-time inquiry and comprehensive monitoring is helpful to accurately judge and assess the social credit of debtors so as to accept and adjudicate bankruptcy judgments and promote the proper settlement of personal bankruptcy debts.Therefore,efforts should be made to establish and improve the external supporting system,which will greatly contribute to the construction of individual bankruptcy system. |
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