On China’s Personal Bankruptcy Exemption System Construct

Personal bankruptcy refers to the legal norms that when a natural person,as a debtor,is unable to pay off due debts,the court arranges,liquidates and distributes his property or adjusts his debts according to law after accepting the bankruptcy application,and relives his debts and reasonably determines the rights and obligations of the parties.From the end of the 20 th century to the beginning of the 21 st century,the development of consumer credit in western countries led to the serious debt problem of the whole society.As an effective means to solve the debt problem,the personal bankruptcy system was greatly developed in European and American countries at this time.In recent years,with the rapid development of our credit industry,the problem of personal debt has become a social problem in our country.Whether it is the joint guarantee of natural person caused by enterprise bankruptcy or the accumulation of consumer debt,it is urgent to solve the effective mechanism.The establishment of personal bankruptcy system is the inevitable measure to solve such debt problems.Therefore,the state specially carried out the individual bankruptcy system of the local pilot,from the legislative and judicial two aspects of the establishment of the individual bankruptcy system to explore the path.As an important system to undertake the core functions of the legal system of personal bankruptcy,the personal bankruptcy disclaimer system not only has the important utility to help debtors start a fresh start,improve the business environment,maintain social harmony and stability,but also meets the needs of our economic and social development.In the course of our personal bankruptcy system establishment,the construction of personal bankruptcy system is an important link,which is directly concerned with our personal bankruptcy legal system basic ideas and legislative direction.In view of this,this article regards the construction of the personal bankruptcy disclaimer system as a research object,aiming at the analysis of the current legislation and judicial pilot of the personal bankruptcy disclaimer system in our country,and puts forward some suggestions on constructing our personal bankruptcy system at the national level.In addition to the introduction and conclusion,this thesis is divided into four sections.The first part is a basic overview of the personal bankruptcy exemption system.Firstly,this thesis introduces the origin and development of the concept of personal bankruptcy exemption system,and briefly analyzes the necessary conditions for the establishment of personal bankruptcy exemption system.Secondly,this article analyses the value of the system established by the personal bankruptcy system in terms of solving the "difficult to execute" problem,ensuring debtor’s "start again" and avoiding systemic financial risk,and expounds the importance of the personal bankruptcy system to the social development of our country.Finally,the theoretical basis of personal bankruptcy exemption system is elaborated,including debtor cooperation theory,humanitarian theory and social utility theory,which provides theoretical support for further research.The second part is about the status quo and existing problems of our personal bankruptcy exemption system.This article mainly analyses the current situation of our country’s personal bankruptcy disclaimer system legislation and judicial practice,and points out that there are many problems in the personal bankruptcy system,such as choice of procedure and decision mode,conditions that need to be satisfied to obtain the disclaimer,its effectiveness in different circumstances and corresponding supporting mechanism,which needs a further research in theory.The third part is about the legislative practice and experience of the individual bankruptcy exemption system in foreign countries.Firstly,the legislative practice of personal bankruptcy exemption system in common law and civil law countries is analyzed.For example,the provisions on the exemption system in the bankruptcy law of the United States enable the debtor to enjoy the benefits of exemption quickly,while the attitude of Germany is more cautious about the exemption system,and the debtor needs to go through a long investigation period to obtain the exemption.Secondly,this thesis summarizes these countries’ personal bankruptcy disclaimer system and points out the enlightenment for building personal bankruptcy system in our country,such as choosing the mode should be according to national conditions,abandoning the distinction between businessmen and non-businessmen,enumerating the exception clause and protecting the subject from the discrimination,etc.The fourth part is about the path choice of constructing the Chinese model of individual bankruptcy exemption system.First of all,it is necessary to choose an appropriate waiver procedure and decision mode based on the actual situation of our country and advanced experiences of the world.Secondly,in order to avoid the abuse of the exemption system as a tool to escape debts,it is necessary to set up more specific exemption conditions,mainly from the scope of the main body of the exemption,the investigation period of the exemption,the situation of the exemption and the debt of the exemption.Thirdly,in terms of the validity identification of the exemption system,the rules of loss of right and recovery right are highlighted,and the effect changes after the debt is rerecognized and the exemption is revoked are clarified.Finally,in order to improve the supporting mechanism of the exemption system,the bankruptcy registration system is introduced,and the personal credit system and social security system are improved.