On Legal Construction Of Individual Bankruptcy System Of China

Individual bankruptcy system refers to a legal system, when the property owned by debtor is unable topay all the obligations, the bankruptcy is declared in accordance with a procedure prescribed by law. As aninevitable consequence of the development of commodity economy, the bankruptcy begins with individualbankruptcy at first, and then comes out the legal system of enterprise bankruptcy after the emergence ofbusiness entity. Compared with development history of bankruptcy system in the rest of world, thebankruptcy law of China begins with the bankruptcy of state-owned enterprise. Along with the deepeningof reforms and opening up, the application of above law is expanded to include business entity. Thebankruptcy law of China adopts strict legislative mode of theory of business entity bankruptcy, so otherthan the business entity, the natural and commercial natural persons cannot be bankrupt, or become theregulated object of bankruptcy law, which is not accordance with the legislation of bankruptcy law in theworld, and could not solve many practical problems in social life.At present, with the rapid development of market economy in China, more and more individualsparticipate in marketing activity. An individual may be unable to pay his/her obligations due to market risk(such as failure of business) or other factors (for example, natural calamities). When the vast debts are withprivate lending, the debtor may flee or commit suicide to avoid debts. When no property of debtor isavailable for the enforcement, it is difficult to enforce the judgment. Many civil and commercial cases,which fall into difficult enforcement cases, by its very nature, are bankruptcy cases. Therefore,establishment of individual bankruptcy system is not only the demand to perfect the bankruptcy legalsystem, facilitate and protect individual entrepreneurship, but also the key to appropriately dispose privatelending and settle difficult enforcement problems in civil and commercial cases. For the present, there arebasic conditions for establishing individual bankruptcy system in our country. The economic gainsthroughout three decades of reform and opening up offer the material insurance; the enhancement ofcitizen’s legal consciousness provides mental preparation; the establishment and soundness of personalproperty system and personal credit system provides favorable conditions; the continual improvement ofsocial security system lifts the worries of individual bankruptcy. After undergoing development for quite a long time, the individual bankruptcy legislation indeveloped countries (such as the United Kingdom, the United States, France, Germany, and Japan) isdeveloping for a long time, its mature legislation experience would produce some use for individualbankruptcy law legislation in China. According to our national condition, the individual bankruptcylegislative mode should be of theory of merchant bankruptcy in China. The individual bankruptcy applicantis creditor and debtor. In order to ensure the essential living needs of bankrupt and their family life, theproperty must reasonably be divided into exempt property and bankrupt property. As an important systempreventing individual bankruptcy, bankruptcy conciliation saves judicial resources and makes up the defectof bankruptcy system. Losing-right system, rehabilitation system, and discharge system acting as particularlegal systems in individual bankruptcy are the core of individual bankruptcy system. The establishment ofthese systems has great significance for construction of individual bankruptcy system.