Study On The Application Scope Of The Subject Of Personal Bankruptcy System In China

In 2007,Enterprise Bankruptcy Law of the People's Republic of China was officially released and implemented.However,it is called “half-mature law” because it only regulates the bankruptcy of business entity and does not rule personal bankruptcy.Personal bankruptcy,in essence,encourages developments,endures failures,and guarantees livings.Through establishing proper discharge system,rights and free property system,the law can promotes the developments of economy and contributes to the social stability.With the development of market economy,the notion of releasing a law about personal bankruptcy has received a wide population.Some theoretical scholars claims that the realization of fairness and social security as well as the international trend requires a law about personal bankruptcy.Besides that,considering the economy development,the perfection of credit system,and a better social insurance system,it is possible to have a law of that kind,but researches involving the definition of the person do not have much literature.So,based on former studies on personal bankruptcy,this paper adopts a comparative approach to analyze this issue,trying to stating a new view towards the application range of personal bankruptcy law.This paper consists of four parts.The first part puts forward the related problems existing in the scope definition of personal bankruptcy subject in China,that is,the extension is vague and the connotation is unclear.The extension is vague,mainly because the relationship between personal bankruptcy and the bankruptcy of economic organizations with unlimited liability that individuals participate in has not been clarified;the connotation is unclear mainly in three aspects,the first is which natural persons are suitable for personal bankruptcy? Is it just a natural person in physiological sense or a natural person in legal sense? Don't differentiate behavior ability? The first is the general question,the second and the third are not clear about whether the subject can be defined as a special identity: the second is whether the natural person can be distinguished as a businessman,that is,whether only the natural person with the identity of a businessman can be applied to personal bankruptcy? That is to say,the dispute of "personal bankruptcy mode" in the theoretical circle.Third,it is not clear whether farmers can apply personal bankruptcy.The second part defines the extension of personal bankruptcy subject in China.This part analyzes the extension of the subject of personal bankruptcy from the perspectives of legal logic and legal language,and finally comes to the conclusion that "personal bankruptcy" should not include the bankruptcy of economic organizations in which individuals participate,in other words,"personal bankruptcy" should talk about the bankruptcy of "individuals",not the bankruptcy of "organizations".This conclusion is also the premise of the following article.The connotation of "individual" here is the core issue discussed in the following article.The third part combs the connotation of the subject of personal bankruptcy in China.After identifying the subject of personal bankruptcy as "individual",this part explores the specific connotation of "individual".This part discusses from three aspects: the general definition of the scope of "individual" and whether the two special identities of non businessman and farmer are suitable for personal bankruptcy,to jointly answer the central question of "who can be suitable for personal bankruptcy".Among them,the general definition of the scope of "individual" is mainly through the analysis of different views;the influence of businessman's identity on the subject qualification is mainly through the reference of statistical data and comparative research methods,combining the experience of overseas legislation with the current situation in China;the influence of farmer's identity on the subject qualification is also concluded through the analysis of different views,and This paper puts forward a new point of view on the issue of "whether the peasants' right of contracted management of land is regarded as bankrupt property or not"--the legalization of the separation of three powers provides a referential way to solve this problem.In the legislation of personal bankruptcy system,we can imitate the law of contracted management of land,and stipulate that when the peasants begin the procedure of personal bankruptcy,they should exclude their right of contracted management from bankrupt property,but they will not be treated as bankrupt property The business right is included in the bankruptcy property.The second and third parts of this paper analyze the ought to be state of the scope of the subject of personal bankruptcy in China.The fourth part discusses the actual state of the scope of the subject of personal bankruptcy in China by analyzing the current actual situation in China,combining with the objective law of the development of things and the general law ofthe evolution of the overseas system.We should step by step and focus on solving the natural person's cause first The problem of bankruptcy caused by liabilities in production and operation activities is gradually extended to the natural persons who are bankrupt due to consumption liabilities,and finally a comprehensive personal bankruptcy system is established.Through the way of putting forward questions,analyzing questions and solving questions,the paper finally gives the answer to the question of the scope of the applicable subject of the personal bankruptcy system in our country: the subject of the personal bankruptcy system in our country should include all the natural persons in the legal sense(including the individual industrial and commercial households and the rural contracted business households in the chapter of natural persons in the general principles of civil law),and should not be businessmen or non businessmen The standards of farmers and non farmers should be distinguished.As for the consideration of civil capacity,it should be given to the "bankruptcy application" part of the specific system design.At the same time,it points out that the establishment of any system is not achieved overnight.On the premise of admitting the above-mentioned subject,it is also an approach in line with the law of development of things to step by step in the implementation process according to the actual situation.