The Deficiency And Improvement Of The Personal Debt Clearing Mechanism In China

In China,the establishment of the "personal bankruptcy law" is still at the stage of theoretical research.In the judicial practice,a number of courts have conducted a bold exploration and a useful attempt to pilot the personal debt clearing mechanism,providing a procedural interface for individual debtors to withdraw and rejuvenate.The local court's decision to clean up personal debts should be affirmed.In theory,we should sum up the experience gained from the pilot projects in a timely manner,and further study the direction and path of the improvement of the system.In the judicial practice,there are three kinds of personal debt clearing mechanisms,namely,the "Zhejiang mode","Jiangsu mode" and "Shandong mode"."Taizhou type" in "Zhejiang mode" mainly constructs the operation process of "execution to personal debt clearing",which stipulates a comprehensive personal debt clearing procedure,"Suining type" in "Jiangsu Mode" mainly solves the withdrawal of individuals and illegal organizations in the execution procedure,"Wujiang type" is the refinement of "Wenzhou type" clearing mechanism.The "Gaoqing type" under the "Shandong mode" mainly solves the personal debt problem related to enterprise bankruptcy.However,due to the lack of uniform system supply in law,many problems have been exposed in practice.Firstly,the scope of application and the standard of identification are not uniform.Secondly,the way to start the debt liquidation procedure is too single.Thirdly,the legal basis for the manager's authorization is unknown and the fund guarantee mechanism is not sound.Fourthly,the effect of debt liquidation is not enough for all creditors.In order to avoid accusation of illegality and promote the procedure under the premise of "creditor's unanimous consent",the local court has difficulty in promoting its procedures,and because it can not take into account all creditors,the effect is not guaranteed.Fifthly,because the court's position in the debt liquidation procedure is unclear,in order to avoid disputes in judicial practice,the court has chosen the uncontroversial case in practice,and the scope of the trial has been greatly restricted.Sixthly,the imperfection of the system of personal loss of rights and reinstated power,confuses the loss of rights in personal debt liquidation with the credit punishment and repair in the restoration and enforcement of rights,resulting in the confusion of application and further affecting people's confidence and trust in the personal debt clearingmechanism.As a dispute resolution mechanism,personal debt clearing mechanism needs to be perfected to meet the wider and long-term social needs.The scope and standard of application should be more clear and unified,and the application of consumptive subjects should not be excluded.The way to start up the liquidation procedure should be diversified,and the liquidation of personal debts should be carried out,mediation should be made to liquidation of personal debts,and the bank creditor's Committee should intervene in mediation and turn to personal debt liquidation.Referring to the bankruptcy management system of enterprises,creditors and debtors can appoint managers in the form of entrustment contracts.The remuneration of the personal debt manager should be protected by the personal debt clearing fund in light of the practice of the bankruptcy trustee assistance fund in the local judicial practice.By introducing the voting mechanism of the creditors' meeting,the voting rules of "double majority" and "quasi consent" should be adopted to slow down the pressure of the court and administrators and ensure the rapid progress of the procedures.The court should give full play to judicial activism,integrate existing legal resources,formulate operational guidelines for personal debt liquidation,and carry out judicial review of debt liquidation within the terms of reference.Referring to the legislative mode of individual loss of rights and reinstated rights in foreign countries,in the framework of our current credit punishment and credit repair system,we set up the mode of contractual loss of rights,statutory loss of rights and mixed right mode according to different liabilities.