Design Of The Subject Scope Of China's Personal Bankruptcy Syste

Personal bankruptcy is the general term for a series of systems which individuals who cannot pay all of their debts can declare bankruptcy and repay their debts according to legal procedures.Many countries and regions have established a relatively complete personal bankruptcy system,while in Chinese mainland there is only the Enterprise Bankruptcy Law,a "half" bankruptcy law,making it impossible for natural persons to go bankrupt.In 2019,the "Reform Program to Accelerate the Improvement of the Exit System of Market Subjects" was issued,requiring that natural persons,as market subjects,be included in the scope of the bankruptcy system.Meanwhile,the 2021 Supreme Court work report also puts forward similar requirements.On March 1,2021,the Shenzhen Special Economic Zone Personal Bankruptcy Ordinance was officially implemented,and China’s personal bankruptcy system took off in the form of a pilot local legislation.In the construction of the personal bankruptcy system,a basic issue arises: who exactly does the personal bankruptcy apply to,i.e.,the subject scope.The first chapter of the thesis aims to introduce the basic issues studied.First,this chapter sorts out the existing pilot ordinances and the treatment schemes in judicial practices around the country.This chapter also conducts a comparative law study to find the differences in rules and the omissions of foreign countries.At the same time,this chapter suggests that the problems exposed in the judicial practice of personal bankruptcy systems in the Taiwan region and Japan may also appear in Chinese mainland,and the personal bankruptcy system must be well guarded.The scope of the subject matter of human bankruptcy contains a basic question and two specific questions: what is the standard? Can it be applied to consumers and can it be applied to rural residents?Chapter 2 analyzes several factors that need to be paid attention to in order to solve the problems of this paper and also proposes that the scope of personal bankruptcy subjects should include all types of natural persons.Firstly,The scope of the subject matter of personal bankruptcy needs to fit with the philosophy and system of the personal bankruptcy system itself: the personal bankruptcy law is to "protect the honest and unfortunate",and if our personal bankruptcy law lacks in the applicable subjects,it will be difficult to achieve equal protection for all "honest and unfortunate";personal bankruptcy law also provides certain core systems such as the exemption system,which are also not designed to protect some special subjects.Secondly,the article believes that the scope of personal bankruptcy subjects cannot be detached from the reality of China’s actual national conditions.By studying the changes of Chinese personal bankruptcy law since the Qing Dynasty,this thesis argues that in modern China,the personal bankruptcy system,as an imported product,can hardly fit in with China’s commercial customs without localization and amendment.Therefore,if important subjects in China’s commercial transactions,such as consumers,are ignored,they may be excluded from the bankruptcy practice.The last part of this chapter draws a preliminary conclusion that personal bankruptcy in China should include all types of natural persons,which is the desirable state of the scope of the subjects of China’s personal bankruptcy system.On the basis of the foregoing views,Chapter 3 suggests that personal bankruptcy may apply to consumers.The first section analyzes the functions and beneficial effects of such a method,including the ability to cope with the problem of consumer debts and to follow the world legislative trend,and argues that the general bankruptcy legislative model can effectively absorb the bankruptcy system of individual businesses.The second section discusses the specific reasons why personal bankruptcy should be applied to consumers,including the disadvantages when personal bankruptcy is not applicable to consumers.The last section of this chapter provides legislative recommendations on the procedures for applying bankruptcy to consumers,arguing that,based on the consideration of foreign legislative examples,out-of-court settlement procedures and summary procedures should be fully applied so as to achieve consumer bankruptcy economically and efficiently.The last chapter of this paper suggests that personal bankruptcy law may apply to rural residents.The first section discusses the specific reasons for putting forward this viewpoint,including: first,rural residents have similar characteristics to consumers,and since the bankruptcy of consumers is provided for,it is not appropriate for rural residents to be excluded from the scope of subjects of personal bankruptcy;second,the existence of rural residents is the reality of China’s national conditions,and as previously mentioned,the design of the scope of subjects of personal bankruptcy cannot be separated from the social reality of China.The second section of this chapter discusses the feasibility of applying personal bankruptcy to rural residents,mainly refuting the series of arguments that deny the application of personal bankruptcy in rural areas because of "lack of property to break" and arguing that this does not constitute an obstacle to entering bankruptcy proceedings.Even if it could constitute an obstacle,policies such as the separation of "three rights" could resolve this obstacle.The chapter concludes with further legislative suggestions for the application of bankruptcy regimes to rural residents,arguing that the regimes should be designed in a targeted manner and that the relationship between land policy changes and personal bankruptcy legislation can be reconciled by means of law + judicial interpretation.