Research On Legal Issues Of Individual Bankruptcy Discharge System

The biggest difference between individual bankruptcy and corporate bankruptcy is that the personal debtor,as a member of the society,needs to continue to participate in social life and economic life after the end of the bankruptcy procedure,and its personality will not be destroyed due to bankruptcy,so the debt will not be destroyed At this time,a system is needed to help the debtor return to economic life,which is bankruptcy discharge system.At the beginning of the establishment of the bankruptcy law,bankruptcy was adopted to punish the debtors who failed to repay their debts.The bankrupt was considered as a criminal who broke the economic order.With the development of credit economy,the guilt was not suitable for the development of modern society.The individual bankruptcy discharge system came into being.Up to now,most countries and regions have established the bankruptcy discharge system,but at present,China has not been established the bankruptcy discharge system.Since the emergence of the bankruptcy discharge system,its existence value and theoretical basis have been concerned.It is generally agreed that the discharge plays an important role in the protection of the limited liability and dignity of individual debtors.This paper also discusses the legitimacy of its existence from three aspects:risk allocation,social utility and external effectsWith the development of economy,an increasing number of individuals enter into the market economy activities,such as consumer loans,cash loans and other personal credit transactions,and the phenomenon of personal excessive debt is becoming more and more serious.At the same time,in some tort damages and criminal incidental civil cases,the individual is in the state of no property to be enforced,which leads to the difficulty of court enforcement.At present,there is no exit mechanism.Nowadays,with the personal debt crisis becoming more and more serious and the cases involving personal "execution failure" hard to be solved,the society urgently needs a new effective mechanism to solve the debt dispute between individuals,hoping that the bankruptcy discharge system will become a relief means for the over indebted.At present,most countries?regions? in the world,including the United States,Britain.Japan,Germany and Australia,as well as China's Hong Kong and Taiwan and other regions,have already established a relatively perfect individual bankruptcy discharge system,and have some legislative experience and judicial practice experience.As the developed market economy countries,the individual bankruptcy law system of the United States and Britain has experienced several decades or even hundreds of years of historical evolution,and has been relatively mature.The discharge system of individual bankruptcy in foreign countries can be divided into four parts:commencement,effectiveness,limitations and cancellation.In the aspect of the commencement,the United States,Britain and Taiwan adopt the principle of apparent relief,while Germany and Japan adopt the principle of approved relief.In the aspect of the effectiveness,all countries and regions have made laws on the consequences of the debtor itself,creditors and third parties after the debtor is exempted.In addition,in order to protect the legitimate rights and interests of the bankrupt debtor from being treated differently,the United States has also made provisions on the prohibition of discriminating against the debtor.In terms of the limitation,most countries and regions have made provisions on the types of debt that are not exempted and the reasons for cancellation of the discharge for refusing to be exempted.The rules of enumeration are given.In order to reduce the burden of the discharge procedure and prevent the abuse of the discharge system,some countries and regions have also stipulated the pre-set procedure and the bankruptcy crime system.In 2004,when we discussed amending the bankruptcy law,we tried to write the individual bankruptcy discharge system into the draft.Unfortunately,due to the imperfection of the personal credit system at that time and the lack of a good credit environment foundation,finally the bankruptcy law did not adopt the suggestions in the draft and failed to really establish the system.At present,only in 2019,Taizhou and Wenzhou,two intermediate people's court,issued two temporary documents on personal debt liquidation,which put forward some guiding opinions on individual bankruptcy discharge.However,it can not be used as the basis of judicial practice.The specific system design of individual bankruptcy discharge system in China should learn from the experience of countries and regions that have mature legislation and long-term practice,and combine with the actual situation of our country,integrate the individual bankruptcy system and individual bankruptcy discharge system into the bankruptcy law of our country,and establish a perfect bankruptcy law system.When establishing the individual bankruptcy discharge system in China,we need to legislate from the aspects of legislation,application subject,condition,effect,exception and cancellation.In order to avoid the abuse of rights and reduce the moral hazard,at the beginning of legislation,China should adopt a more strict system model,that is,approved relief mode;the application subject of discharge should be the same as the application subject of individual bankruptcy system,which is applicable to all individuals;the effect of discharge on the debtor should adopt the theory of natural debt,and the effect of discharge has no effect on the third person;the limitation and withdrawal of discharge should be combined with China's national conditions,and set up the reasonable proportion of repayment and a reasonable period of discharge Under the mode of approved relief,the proportion of discharge and the period of discharge should not be set too strictly.At the same time,we should set up the exceptions of discharge and the reasons for cancellation.When establishing the individual bankruptcy discharge system,we need to consider the improvement of the relevant supporting system and the legal regulation of the bankruptcy crime,so as to provide an effective market exit mechanism for the individual debtors with insolvency,and help the bankruptcy debtors to restart their economic life.