| The system of free property,the system of debt relief and the system of loss of rights and restitution together construct the framework of the personal bankruptcy system,which is also the three unique systems in the personal bankruptcy law.Among them,the free property system focuses more on meeting the basic living needs of the debtor after bankruptcy,guaranteeing its right to subsistence and development during personal bankruptcy,and has a promoting effect on encouraging the debtor to apply for personal bankruptcy voluntarily.The characteristics of the free property system are mainly manifested in the uncertainty of scope and the restriction of protection,and the uncertainty of the scope of free property is supported by the legislative characteristics of determining the scope of free property outside the country.The legislative characteristics of determining the scope of free property outside the country are as follows:affluence,and the typical representative is the United States;Compact,such as Norway,Sweden;neutral,typical representative such as Taiwan;The restrictive performance of security is temporary and the minimum security.China ’s existing legal provisions of some of the property system also to a certain extent,showing similar characteristics,such as unenforceable property,property recovery,relief funds,etc.,it can be seen that the free property system in our country has a long history,not exotic,has rooted in the soil.The existence of the free property system has its unique effect.In addition to protecting the rights and interests of the debtor,for creditors,the free property system can make the debtor ’ s property open and transparent,so it is also conducive to the protection of the rights and interests of creditors.In addition,for social fairness and the rule of law,the free property system can promote the debtor to actively apply for personal bankruptcy,so as to establish and improve the exit mechanism of cases where judicial enforcement cannot be carried out,and promote social harmony and stability.With regard to how to establish the scope of free property,under the guidance of the two basic principles of ensuring the survival and development of the debtor and its family members and the principle of moderation,and with reference to the method of establishing the scope of free property,the first is to set a ceiling on the cumulative total value of property,and the second is to set a ceiling on different values for specific types of property.The two methods have their own advantages,so it is more appropriate to combine the above two methods to determine the scope of free property.In view of the specific composition of free property,it will be discussed from the aspects of the property necessary for the debtor and its family members ’basic life,the property necessary for the debtor’s career development,and the property with personal specificity.The above types of property as the specific composition of free property are reasonable,and specific analysis is carried out for some controversial types of property,such as property,housing,and vehicles obtained by the debtor during bankruptcy.The determination of the scope of free property is legal and does not change with the debtor’s subjective will,but as a right,the debtor may apply voluntarily.The debtor’s assets and liabilities are private,so the debtor who has the best knowledge of the assets and liabilities should naturally be the first applicant for the right to free property.When the debtor fails to exercise his rights in a timely manner and poses a threat to the survival of the family members living together by the debtor,the family members at this time can directly apply for free property if they are fully capable of doing so.If they are incapacitated or restrictive,the relevant institutions can cooperate with the insolvency representative to apply for free property.After the debtor applies for free property,the family members and creditors who live with the debtor can start the objection procedure.For the objections of different applicants,the standards and methods of court review are also different.In addition,because the free property system guarantees the debtor’s right to subsistence,so the free property right cannot be abandoned. |
