Research On Civil And Commercial Legal System For Preventing Personal Bankruptcy Liquidation Fraud In China

The civil and commercial legal system for preventing personal bankruptcy liquidation fraud in China refers to the civil and commercial legal system in order to maximize the protection of creditors’ interests,strictly prevent debtors from engaging in bankruptcy fraud,and promote the smooth progress of personal bankruptcy liquidation procedures.The nationwide implementation of personal bankruptcy procedures is still in the initial stage.Effective prevention of fraud in personal bankruptcy liquidation can ensure the maximum benefits of creditors,and also has a superior functional effectiveness in helping honest debtors regenerate and maintain social stability.In preventing personal bankruptcy liquidation fraud,various pilot regions in China have made many efforts.In the system design of Shenzhen Special Economic Zone,legislative concepts such as the diversion of debtors,the disclosure of bankruptcy information registration,the restriction of exemption from liability,and the right to rescind bankruptcy have been introduced;Other pilot areas have implemented localization reforms in investigating and verifying debtor property.Currently,various pilot regions in China are still in the exploration stage of preventing fraud in personal bankruptcy liquidation,and there are still related issues in terms of applicable conditions,scope of property declaration,civil and commercial legal liability.First,the applicable conditions for personal bankruptcy liquidation are too loose.On the one hand,the existing review methods of the people’s court are difficult to effectively identify dishonest debtors,and on the other hand,future debtors with solvency may be included in bankruptcy liquidation procedures;Secondly,the value of the exempted property of the debtor in bankruptcy liquidation is too high,mainly manifested in the excessively wide scope of the exempted property and the excessively high value limit;Third,whether the joint property of the husband and wife should be included in the bankruptcy property when there is a lack of bankruptcy system for the joint property of the husband and wife,and when the joint property of the husband and wife is mixed or it is difficult to prove the joint debt;Fourth,there are defects in the debtor’s prevention system for transferring or improperly disposing of property.The subject and scope of property declaration are too narrow,and the scope of restrictions on gratuitous guarantees is too narrow;Fifth,the exercise period of personal bankruptcy revocation right is too short;Sixth,there are shortcomings in the legal system of civil and commercial liability.On the one hand,civil legal liability is too light,and the cost of violating the law is low,which cannot have a deterrent effect on malicious debtors and their helpers.On the other hand,the scope of bankruptcy revocation is too narrow,and cannot include all acts of debtors that harm the interests of creditors during the critical period of bankruptcy.Drawing on relevant foreign legislative experience and combining with China’s national conditions,this paper puts forward suggestions for improving the above shortcomings.Strictly enforce the applicable conditions for bankruptcy liquidation and limit the applicable conditions for bankruptcy liquidation to bona fide debtors who are unable to repay in the future.Limit the value of exempt property in bankruptcy liquidation,limit the scope of exempt property as necessary,and set upper limits on the value of different types of property.Married debtors should,in principle,list their joint property as bankruptcy property.Improve the prevention system for the transfer or improper disposal of property by the debtor,expand the scope of property declaration to the debtor’s spouse,children,and other close relatives who live together,and prohibit the debtor from providing guarantees for the debts of others without compensation.Extend the exercise period of bankruptcy revocation based on the debtor’s bankruptcy threshold period.Improve the civil and commercial liability legal system for personal bankruptcy liquidation.The introduction of civil punitive liability provisions applies to debtors and third parties who assist debtors in committing fraudulent acts;At the same time,expand the scope of application of the bankruptcy cancellation right,and improve the commercial responsibility of personal bankruptcy liquidation.