| In 2018,when reporting to the Standing Committee of the National People’s Congress on the court’s solution to the problem of "difficulty in enforcement",Zhou Qiang,president of the Supreme People’s Court,mentioned for the first time that "it is necessary to promote the establishment of a bankruptcy system for natural persons,improve the current bankruptcy law,and smooth the exit path for ’enforcement impossible’ cases according to law." Since then,issues related to the bankruptcy of natural persons have once again become a hot spot in academic research.The exemption system in the natural person bankruptcy system enables the debtor to get rid of the shackles of onerous debts and return to normal life,but it also damages the creditors’ rights and interests to some extent.In this case,the loss of rights system is needed to balance the rights and obligations of creditors and debtors,while protecting the creditors’ claims to the greatest extent,it also serves as a warning to the debtor to exercise caution and to save the honest but unfortunate debtor from the burden of onerous debts and return to normal life.The so-called loss of rights refers to the restriction of part of the rights and freedoms of a natural person debtor within a statutory period of time at the same time that it is declared bankrupt,which may be both a restriction of its personal rights and its property rights,which is an important part of the bankruptcy system for natural persons,and is also a guarantee for realizing the legislative concept of the bankruptcy system and giving play to the due role of the bankruptcy system.The scope of loss of rights is the core content of the loss of rights system,which carries the value and function of the loss of rights system,so it is of great significance to study and discuss the scope of bankruptcy and loss of rights of natural persons.In recent years,many regions in China have successively carried out pilot work on the bankruptcy of natural persons,and through combing,it can be found that there are two main problems in practice in determining the scope of bankruptcy of natural persons: first,the scope of bankruptcy of natural persons simply applies the relevant provisions on the scope of bankruptcy of untrustworthy persons;Second,the extent of a bankrupt’s loss of rights was determined without taking into account the impact of the causes that led to its insolvency on the scope of the loss.However,there are quite a difference between a bankrupt and a dishonest person in terms of both subjective willingness to repay debts and objective ability to repay debts,and in practice,it is inappropriate to simply apply the relevant provisions on the loss of rights of untrustworthy persons when determining the scope of bankruptcy’s loss of rights.In addition,the reasons that lead to the bankruptcy of a natural person determine the extent to which the bankrupt is responsible for its own bankruptcy facts,which can then be used as a factor for the people’s court or the bankruptcy administrator to consider when determining the scope of its loss of rights.When determining the specific content of the bankruptcy loss of rights of natural persons,China should first clarify the specific reasons for the bankruptcy of the debtor,distinguish the debtors accordingly,divide different types of bankruptcies according to different bankruptcy causes,and give the people’s courts a certain discretionary space,so as to reasonably define the scope of their loss of rights.Seek to strike a balance between rescuing honest and unfortunate debtors and reintegrating them into normal life and protecting the interests of creditors’ claims. |
