On The Free Property System Of Personal Bankruptcy In China

In the last few years,the academic circles have carried on many discussions about the establishment of personal bankruptcy system in China.In August 2020,the adoption of the first personal bankruptcy law in China,the Shenzhen Special Economic Zone Personal Bankruptcy Regulations,was an ice-breaking move in the process of building personal bankruptcy system in China.However,China has not yet formally established a unified personal bankruptcy system,and the free property system,as an important part of the personal bankruptcy system,only remains at the theoretical level.The so-called free property,also known as exempt property,refers to the property that is not included in the bankruptcy estate according to the law,but is retained by the debtor.To a certain extent,the free property system protects the basic living and production of the debtor and his dependents,and fully reflects the concept of protecting the "honest and unfortunate" debtors under the personal bankruptcy system.However,there are still some problems in the construction and judicial application of the personal bankruptcy free property system,which need further consideration and research.The paper takes the Regulations of Shenzhen Special Economic Zone on Personal Bankruptcy as the foothold,collates personal bankruptcy cases since the implementation of the Regulations,and selects typical cases among them for analysis to summarize the experience concerning the free property regime,and at the same time summarizes the problems existing in the existing practice.At present,China’s personal bankruptcy free property system has no clear basic principles to determine the scope of free property,the scope of free property is relatively general and the specific rules of disposal of free property are lacking.Based on China’s national conditions,this paper analyzes the necessity and feasibility of introducing the personal bankruptcy free property system in China.At the same time,the causes of the existing problems are analyzed,and it is believed that the above problems are caused by the social reasons,such as the insufficient development of China’s commodity economy and the incomplete transformation of the public’s legal awareness of bankruptcy,as well as the reasons at the legal level,such as the lagging theoretical research on the personal bankruptcy free property system in China,the lagging current bankruptcy legislation and the lack of summaries of relevant judicial activities.On the basis of overseas experience,this paper puts forward suggestions for improving the existing problems.The first one is to establish the basic principles for determining the scope of free property,such as the principle of protecting basic human rights,the principle of moderate protection and the principle of flexible adjustment;the second one is to clarify the scope of free property in China’s personal bankruptcy,refine the general composition of free property,and increase the provisions of new property,trust property,pets and other special property after entering bankruptcy proceedings;the third one is to stipulate the specific rules for the disposal of free property,such as whether free property can be used to pay off debts,whether free property can be abandoned,and whether security can be placed on free property.