Research On Building Legal System Of Heritage Bankruptcy In China

The law is the embodiment of social relations, what kind of social relations, there is what kind of legal system. In the1980’s, according to the social conditions in that time, China had issued the Inheritance Law of the People’s Republic of China (hereinafter referred to as the Inheritance Law) for the purpose of protecting the inheritance rights of heirs, but obviously neglected the protection of heritage creditors’rights. With the continuous development of market economy, the legacy debt disputes is increaseing day by day and tend to be much more complex. For the protection of the benefits of heritage creditors, today the legal system of heritage bankruptcy is used to meet the demand for fair repayment of all creditors in the majority of countries and regions. The current Enterprise Bankruptcy Law of the People’s Republic of China (hereinafter referred to as the Enterprise Bankruptcy Law) is a limited merchant bankruptcy law, and its applicable scope is so limited that can not meet the requirements of social development and the development trend of the world bankruptcy law. Therefore, we can learn from extraterritorial advanced legislation of General Bankruptcy, giving the heritage bankruptcy ability to balance the interests of heritage creditors and heirs.This paper is divided into four parts:The first part is an overview on system of heritage bankruptcy. First of all the author defines the concept of heritage bankruptcy, and analyzes the many features of heritage bankruptcy. Then the author discusses the origin and development of heritage bankruptcy, and draws useful lessons from the analysis of heritage bankruptcy of many countries and regions. Then the author analyzes the heritage bankruptcy system’s fair value attributes and efficiency value attributes. Fair value attributes include equal protection of heritage creditors’ rights and fair maintenance of heirs’interests. Efficiency value attributes mainly refer to the system of heritage bankruptcy can solve legacy debt disputes efficiently, reducing the cost of justice, and achieves the optimal allocation of judicial resources. The second part the author carrys on the comparison between heritage bankruptcy and individual bankruptcy, between heritage bankruptcy and corporate bankruptcy, between heritage bankruptcy and limited inheritance system, to make a better understanding of its own characteristics and role of heritage bankruptcy. The third part states the necessity of building system of heritage bankruptcy from the point of view of the real demand in China. The last part of the paper, also the core part of the paper, is the author’s suggestion on the establishment of our country system of heritage bankruptcy. Firstly, the author determines the legislative purpose and legislative model of our national system of heritage bankruptcy. Followed the author analyzes Some important issues in the construction of our national system of heritage bankruptcy, such as the subject of heritage bankruptcy,the cause of heritage bankruptcy, heritage bankruptcy property, the debt scope of heritage bankruptcy, and the distribution of heritage bankruptcy property. Then the paper illustrates how to deal with the relationship between heritage bankruptcy and heirs during the implementation of heritage bankruptcy. Finally we should make the construction of the systems which matched with the heritage bankruptcy, such as the declaration and registration system of personal property, heritage management system, the public notice system of the creditors, etc.