Research On The Commercial Individual Bankruptcy System

Commercial individual is one of the important commercial subjects in the market economy and plays an irreplaceable role in economic production.However,compared with corporate enterprises,commercial individual has limited financing tools and weak anti-risk capabilities,thus is very vulnerable to failure in market competition and stuck into debtness.These are not conducive to attract entrepreneurs to join the market economy and add vitality to socio-economic development.Moreover,due to the provisions on unlimited joint and several liability in the commercial individual system,the debts that operators and entrepreneurs have to bear are extremely heavy for individual.The huge blow will burden them for a long time or even a lifetime.In the face of these problems,the bankruptcy system can help the subjects in heavy debtness.Meanwhile,they should seek a balance in the rescue of debtors and the protection of creditors' interests to promote the harmonious development of society.On the other hand,with the continuous popularization of global transnational economic activities,the number of cross-border bankruptcy cases will continue to increase,and application of the bankruptcy legal system becomes more important.Cross-border bankruptcy requires international cooperation,and it also tests the legal system of bankruptcy in a country.Only by paying attention to the development and improvement of the bankruptcy legal system and fully considering the needs of each subject for the bankruptcy legal system can we protect the interests of creditors in our country,safeguard the rights of debtors,and master the right in international cooperation.Therefore,this article will study the construction and development of the bankruptcy legal system related to commercial individuals from the perspective of internationalization,and then explore the expansion of the scope of application of domestic bankruptcy legal system and the construction of the bankruptcy legal system of commercial individuals.This article studies the legal system of commercial bankruptcy of individuals in the way of comparison,especially based on comparison of bankruptcy legal system and development and adjustment of the legal system on commercial individuals under different economic circumstances and policy directions in other major countries.On this basis,this article analyzes the legal treatment of commercial individual bankruptcy in China,and explores how to provide a good legal environment for the development of private enterprises.This article is divided into five parts.The first part analyzes the connotation of the bankruptcy of commercial individuals and the internal connection among the main problems of bankruptcy of commercial individuals to be discussed in this article.The characteristics of the unlimited joint and several liability of commercial individuals are the main reason why their bankruptcy issue is complicated and severe.In addition,commercial individuals occupy an important position in China's economic market,and should be paid enough attention to the resolution of their bankruptcy-related issues.The bankruptcy capacity of commercial individuals,the construction of commercial individuals bankruptcy procedures and the cross-border insolvency of commercial individuals are the three main issues in the field of commercial individuals bankruptcy.The second part discusses the bankruptcy ability of commercial individuals.The bankruptcy capacity of commercial individuals refers to the qualification of a civil subject to be declared bankrupt.It solves the question of whether the commercial individuals can become the subject of bankruptcy proceedings.This is the premise and basis for further discussion on the relevant system of the commercial individuals.Nowadays,bankruptcy law in China has given legal entities and partnerships the ability to bankruptcy.Although the United States,Germany,and South Korea do not have the same title of commercial individuals,they basically endow the bankruptcy ability of similar subjects like commercial individuals.The commercial individuals in our country include sole proprietorship enterprises,self-employed business,leaseholding rural househoulds and operators and entrepreneurs who bear unlimited joint and several liability and guarantee responsibility,and it is necessary to consider giving them the ability to bankruptcy.The third part focuses on the construction of the bankruptcy procedures of commercial individuals or similar subjects abroad,and compares different foreign legislative forms and legislative models to discuss which is the choice of commercial individuals bankruptcy procedures in China.The bankruptcy procedure refers to the legal procedure for the court to compulsorily deal with the debtor 's bankruptcy property to pay back to creditors according to the cause of bankruptcy law.The relevant French legal system is stipulated in the chapter "Judicial Liquidation and Judicial Reorganization of Difficult Enterprises" of the French Commercial Code.The bankruptcy laws of the United States and Japan are largely similar.Both countries have formulated unified bankruptcy liquidation procedures for different debtor types,and have designed different procedures for different debtor types on the bankruptcy reorganization system.South Korea has established a simple reorganization procedure,which is suitable for individuals and small,medium and micro enterprises that are in bankruptcy due to commercial activities.It is recommended that China establish both a personal bankruptcy procedure applicable to operators and a simplified bankruptcy procedure applicable to small and micro enterprises.The fourth part is to discuss the development status of cross-border insolvency system on a global scale.The current international bankruptcy legal system provides a direction and a model for cooperation between countries from a macro perspective.It also requires various jurisdictions to make a balance between cross-border insolvency jurisdiction,law application,recognition,and enforcement issues on the basis of balancing the interests of creditors and debtors.Cross-border bankruptcy articles in China only stipulates the principles of the extraterritorial validity of our judgments and recognition of foreign judgments,which is not perfect.First,when the bankruptcy system for commercial individuals is still out of place,the connotation of"reciprocal relationship" should be expanded.Secondly,Chiness legal system for cross-border insolvency proceedings should comply with the requirements of international cooperation in terms of jurisdiction,recognition of foreign judgments,and assistance with foreign courts.The fifth part discusses the specific problems and practical dilemmas encountered by commercial individuals in China.The problem of the bankruptcy of Chinese business owners who provide guarantees for enterprises is very serious.In addition,there are special problems of the personality confusion of family entities and the interregional cross-border bankruptcy cooperation between the mainland and Hong Kong,Macao and Taiwan in China.These issues should be considered in the bankruptcy system of commercial individuals,and related systems such as exemption should be provided to improve the relief effect of the commercial individual bankruptcy system.