Research On The Construction Of China's Personal Bankruptcy Licensing Exemption System

Bankruptcy is a natural phenomenon in the development of the market economy.Due to the lack of bankruptcy law applicable to natural persons and unincorporated enterprises in China at this stage,the large amount of natural person consumption bankruptcy,business-type bankruptcy and sanction-type bankruptcy in practice,the debtor has a heavy debt burden for a long time,which is not conducive to the debtor's timely termination of the creditor's debt relationship.It is also not conducive to its equal competition with corporate entities in the market economy.At the same time,due to the physical attributes of natural persons,if the bankruptcy debt cannot be exempted through the bankruptcy exemption procedure,it will not only affect the basic life of the debtor and his family,but also be detrimental to the stable and orderly development of society.With the development of China's credit economy and consumer credit,the risk of asset risk faced by individuals is increasing.The proportion of bankruptcy is rising,and the current dispute resolution mechanism in China-participation in the distribution system,civil enforcement system and severe punishment measures for the untrustworthy enforced person Not only can we not solve the problem of personal debt fundamentally,but also violate the concept of bankruptcy exemption system to promote the rebirth of debtors.In addition,China's social security system is imperfect,and the social assistance when individuals are in bankruptcy is still insufficient,further exacerbating the deterioration of personal bankruptcy.In order to resolve the dilemma that the debts faced by individuals can not be settled,solve the problem of “difficulties in enforcement” of judicial judgments in China,and at the same time comply with the requirements of cooperation and win-win situation in cross-border bankruptcy cases in the context of global economic integration,and explore the construction of China's personal bankruptcy license exemption system.Reconciling the contradiction between the principle of unlimited liability for personal responsibility and the principle of limited liability for bankruptcy exemption,while encouraging debtors to actively pay off debts to realize the interests of creditors,while safeguarding the rebirth of debtors and safeguarding the fair value of the overall interests of society.At present,most countries and regions have established a personal bankruptcy exemption system.According to different implementation methods,they are divided into a license exemption mode and a course exemption mode.The core difference between the two is that the supervisory power of the debtor's honesty obligations is exercised by the court or by stakeholders such as creditors.Based on the development of consumer credit in the early stage of China's exemption and the construction of supporting mechanisms such as the social credit system,the licensing exemption model based on the exercise of supervision power by the court is more in line with the historical evolution of China's exemption system and the change of the concept of citizen debt settlement.In the licenseexemption mode,after the debtor applies and proves that the exemption condition is met,it is more conducive to the legitimacy of the disclaimer and the legitimate rights and interests of the creditor.The construction of China's personal bankruptcy license exemption system aims to find a balance between protecting the interests of creditors and rehabilitating debtors.Therefore,how to balance the interests of both has become the core issue throughout the construction of the personal bankruptcy license exemption system.By drawing on the useful experience of other countries' legislation,this paper puts forward the concrete construction of China's personal bankruptcy license exemption system from five aspects:the applicable subject,scope determination,exemption procedure,legal effect and risk prevention of China's personal bankruptcy license exemption system.First of all,based on the different bankruptcy ability of the individual bankruptcy license exemption in China,on the basis of the unity of the bankruptcy reasons stipulated in China's Enterprise Bankruptcy Law,according to their respective characteristics,they demonstrate the natural bank's consumer bankruptcy,business bankruptcy and sanctions.The bankruptcy ability of bankruptcy.At the same time combined with the basic theory of debt settlement in China and the relevant provisions on the exemption of civil liability,adopt a generalized and enumerated model,exempt the standard of the debts of the honest debtor from the debts,and the conditions of non-disclaimer and the debts that cannot be exempted.range.Of course,the application of the personal bankruptcy license exemption requires the debtor's property to be clear.Therefore,through the identification of the debtor's property and the determination of the scope of the exemption,a part of the exemption from the strict exemption conditions and the scope of the exempted property is established.Second,encourage negotiation and exemption in the personal debt consolidation process based on reconciliation procedures,self-management procedures and reorganization procedures.At the same time,the licensing exemption in the personal bankruptcy judicial liquidation procedure is set up to establish a limited exemption procedure with debt deferred repayment as the core.The debtor no longer bears the legal liquidation responsibility for the debt exempted,and the creditor cannot appeal to the court for enforcement.Third,from the risks that may be brought about by the implementation of personal bankruptcy license exemption in China,it is proposed to strengthen the guiding function of the personal credit system,external prevention,exemption and abuse,setting disciplinary provisions for personal malice,internal regulation,exemption and abuse,through the combination of summary procedures and common procedures.And the establishment of the Bankruptcy Administration,to achieve program simplification and bankruptcy,while strengthening personal liability constraints and financial supervision to deal with the impact of large-scale exemptions on financial stability.