On Natural Person's Bankruptcy Capacity And Its System Arrangement By The Value And Function Of Bankruptcy Law

As a law to normalize market economy, bankruptcy law is one of most important trading laws,"modulator"of the market economy, and the"gate of the legally withdrawal"for the market corpus. It plays a special role in stabling social order, balancing social benefit and guaranteeing the normal realization of creditor's rights-debt relations. Capacity of bankruptcy is one of the important academic and practical problems in bankruptcy law. The definition of bankruptcy capabilities reflects the value tendency and determines the bankruptcy procedures. From traditional bankruptcy law to modern bankruptcy law, bankruptcy law's values and functions has changed from settlement to saving. The values of modern bankruptcy law refer to the fair value, the biggest faith value, the moral standard value and the benefit value. The functions of bankruptcy law refer to stabling social orders, balancing benefits, eliminating and safeguarding the market corpus, establishing internationally complete market economy status of a country and so on.At present there is no dispute in discussing the capabilities of an enterprise's bankruptcy in China, therefore in the course of drafting the new bankruptcy code, natural person's bankruptcy capacity is an intensely disputable problem which need to be solved urgently. But from the time of drafting new bankruptcy law in 1994 to the time of the newly-passed"Enterprise Bankruptcy Law"on August 27th, 2006, this code experienced 12 years of research and discussion, in which the legislation of natural person's bankruptcy was still in dilemma and in the end the view point of questioning crushed that of supporting, the natural person's bankruptcy is not brought into its adjustment scope, and this is the new bankruptcy law's shortcoming and does not conform to the world development tendency.There is close relationship between bankruptcy institution and the market economy development. With the development of market economy and bankruptcy theory, it is necessary and feasible to endow natural person with bankruptcy capacity in our country. Lacking a perfect bankruptcy system will unquestionably hinder the economic development in China, especially in the intense competition of an integrated world market after China joined the WTO. A sound bankruptcy institution is a must for establishing a socialist market economy of our country. Therefore, the general bankruptcy principle should be applied in our bankruptcy law, natural person's bankruptcy should be brought into its adjustment scope, and a complete set of legal system should be established to prevent its passive effect. Complete bankruptcy legal system has natural person's bankruptcy itself and related systems. The former has the four following aspects: clarifying the boundary of natural person's bankruptcy, perfecting the procedure of natural person's bankruptcy, exempting the responsibility system and the rehabilitation system. The latter also includes the four aspects: setting up perfect individual credit system, the free property system, social guarantee system and perfecting natural person's bankruptcy crime system. Hope the research can perfect natural person's bankruptcy system in China.