A Study Of Personal Bankruptcy Default Regimes

Personal bankruptcy refers to the declaration of bankruptcy by the court when a natural person debtor becomes insolvent,the adjustment of debts to the debtor’s property,the forgiveness of debts and the determination of the relationship between the parties’ rights and obligations in the bankruptcy proceedings.Personal bankruptcy disqualification refers to the loss of qualification and rights of a natural person debtor who is declared bankrupt for a certain period of time.Personal bankruptcy default is characterized by the natural person debtor as the subject of the default and the status of the default is punitive and reversible.By punishing natural person debtors who are declared bankrupt,the personal bankruptcy default system forces natural person debtors to use bankruptcy as the last option to reduce the abuse of the bankruptcy legal system,thus deterring debtors who have the possibility of bankruptcy,which is an important guarantee for the effective operation of personal bankruptcy law.At present,there is no systematic personal bankruptcy default system in China,but with the practical needs and the introduction of relevant national policies,pilot legislation on personal bankruptcy has been carried out in various places,such as Wenzhou,Taizhou,Suzhou and Shenzhen.For example,the court in Wenzhou ruled that the debtor had lost his rights through a conduct restriction order,while the court in Taizhou ruled that the debtor had lost his rights through a conduct preservation order.In the current practice,the following problems exist in the personal bankruptcy default system: first,the default and the negative obligations during the examination period of exemption are easily confused.Second,there is a lack of underwriting provisions on the restriction of professional qualifications for defaulters.Third,the quasi-useful provisions of the Personal Bankruptcy Regulations are not practical enough.Fourth,the subjective faults of defaulters are not distinguished.Fifth,the lack of legal responsibility provisions for the violation of the defaulters.We should start from the following five aspects to improve China’s personal bankruptcy default system.First,we should distinguish between default and negative obligations during the examination period of exemption.Firstly,we should distinguish between lapse of authority and negative obligations during the exemption period,i.e.,we should stipulate special lapse of authority rules applicable to the exemption period and the period of non-exemption after the lapse of authority;secondly,we should add a bottom-up provision on the limitation of professional qualification of the lapse of authority;thirdly,we should enhance the practicality of the quasi-useful provisions of the Personal Bankruptcy Regulations;fourthly,we should distinguish the subjective fault of the debtor;fifthly,we should stipulate the legal liability of the lapse of authority for the violation of the lapse of authority and,on the basis of the principles of proportionality and social reasonableness,provide for the Fifth,to provide for the legal responsibilities of defaulters,and to set up special legal responsibilities for bankruptcy debtors who violate the provisions of default,such as admonishing,ordering repentance or warning the violators of default,and if the circumstances are serious,imposing detention.