Research On Establishment Of Natural Person Bankruptcy In China

According to a general survey of the development of bankruptcy law, bankruptcy law originated from the bankruptcy of natural person, which runs through the whole evolution of bankruptcy. As further development of economic and the appearance of legal persons, the coverage of the bankruptcy law extended to legal persons and other organizations. Three kinds of legislation isms about capacity to bankruptcy exist in the world, everyman ism, businessman ism and compromise ism. Among them everyman ism represents the trend of bankruptcy. At present, Law of the People' s Republic of China on Enterprise Bankruptcy and the nineteenth chapter of Civil Procedure Law of the People' s Republic of China, Procedure for Bankruptcy and Debt Repayment of Legal Person Enterprises, restrict the bankruptcy of legal person enterprises. Bankruptcy Law of enterprises of the People' s Republic of China (draft) was sent to the Committee of the National People' s Congress for discussion on June 21st, 2004. The draft includes the bankruptcy of natural persons who engage in trade, which is considered to be an important change. However, it doesn' t cover the bankruptcy of consumers. The author herein suggest that everymanism should be adopted, that is, all bodies of markets including natural persons should be given ability to bankruptcy.The ability of natural persons to bankruptcy has theoretical foundation. And the constitution of natural person bankruptcy in our country has necessity and feasibility. The author explain the necessity of setting up natural person bankruptcy mainly from the angle of the essential function of bankruptcy, adjusting dissensions between creditors and debtors. In the course of the explanation, some methods are used like compare, integration, combination of theory and practice, etc. At the same time the author discuss the necessity from the angle of other functions of bankruptcy, for example, unification of legal system, rational distribution of social resources, and natural persons' crisis consciousness and credit conception. These functions also offer favorable support for the establishment of natural person bankruptcy. Views against the establishment of natural person bankruptcy are hold among scholars, and a part of them are refuted in this paper. Whether or not the establishment of natural person bankruptcy at present is of feasibility is paid close attention, the author distinguish subjective and objective conditions and assimilate experience of other countries to testify feasibility of setting up natural person bankruptcy from some aspects such as theoretical guarantee, practical support, legal foundation, cooperation of correlative systems.After analyzing the necessity and feasibility of constituting natural person bankruptcy, the author discuss how to constitute relevant concrete systems of natural person bankruptcy in our country by absorbing effective experience of foreign countries. Hereinto systems of exempt property, discharge of bankruptcy, deprivation and restoration of rights are included. The target of bankruptcy transforms from simply protecting creditors' interests to taking care of both creditors' and honest butunfortunate debtors' interests. The systems of exempt property, discharge of bankruptcy and restoration of rights incarnate the target. Exempt property is not merely to keep debtors' basic living but also to enable them to revive. Presently there are mainly two kinds of legislation isms about discharge of bankruptcy, consequent discharge and permitted discharge. In our country consequent one should be adopted in order to exert function of discharge of bankruptcy. At the same time, discharge of bankruptcy should be designed scientifically in case of being abused by debtors to escape debts. After bankruptcy debtors are usually limited on rights and qualifications in public law and private law outside procedures of bankruptcy, which is called deprivation of rights for bankruptcy. It is necessary at the beginning of the establishment of natural person bankruptcy within our country, though it is related to the doctrine of bankruptcy as castigation. Restoration of rights has close relations with deprivation of rights. At present three kinds of legislation isms exist all over the world about restoration of rights, consequent restoration of rights, permitted restoration of rights and commix ism. The author hold the last one is comparatively ideal. Summary bankruptcy procedure is helpful to save judicial resources, to raise efficiency, and it has received positive results during overseas practice. Summary procedure can be adopted by our country' s natural person bankruptcy.The implementation of natural person bankruptcy is a systemic project. Without the cooperation of relevant systems, natural person bankruptcy will become a mere scrap cf paper. At the end of this paper the author suggest the systems cooperated with natural person bankruptcy should be improved. At large, reform courts' organizations; revise and improve Company Law, Criminal Law, Social Security Law and so on to build good legal atmosphere and to offer support in system for natural personbankruptcy; accelerate the improvement of social security system, personal credit and property register; and popularize the system of deposit by real name.