On The Construction Of Consumer Bankruptcy System In China

The consumer bankruptcy system refers to the system of dealing with the debt according to the bankruptcy law procedure when the consumer is unable to pay off the debt caused by the consumption behavior.Its characteristics include: the subject of application must be honest,the bankruptcy ability has the same,the bankruptcy reason has the single,the bankruptcy subject has the existence,the bankruptcy procedure has the particularity.The functions of the consumer bankruptcy system are as follows: firstly,it can guarantee the creditor’s right of fair compensation;Secondly,the debts that cannot be repaid can be exempted through the exemption system to help the debtor get rid of the heavy debt burden;Thirdly,it can protect the interests of both creditors and debtors fairly.Finally,it can quickly solve the disputes of creditor’s rights and debts,and the debtor can reduce the survival difficulties caused by excessive debt,and also reduce the disputes caused by creditor’s debt collection,thus stabilizing the fairness and stability of the society.Various patterns of credit consumption have appeared in our country,which increases the possibility of personal debt crisis.The debt pressure will harm the right to life of the good and honest debtor.It is necessary to give consumers bankruptcy ability in law so that they can recover their normal life through bankruptcy exemption.The legitimacy of establishing consumer bankruptcy system lies in: it is the realistic demand of our society,an important driving force to optimize our business environment,and can realize the value of modern rule of law and the system demand proposed by judicial practice.At the same time,with the continuous development of economy and society,the reform of China’s bankruptcy system and the increasingly mature personal credit information system have laid a strong condition for the construction of consumer bankruptcy system.In the "Civil Code" and "Shenzhen Special Economic Zone Personal Bankruptcy Regulations",legislators designed a series of important related systems,which provide legal support for the construction of consumer bankruptcy system.In order to construct the consumer bankruptcy system effectively,three legislative objectives should be established.The first is to guarantee the creditor’s right of fair compensation,the second is to guarantee the debtor’s right of survival,and the third is to balance the interests between the creditor and the debtor.Secondly,in the choice of legislative form,China should unify the consumer and commercial natural person legislation,even if the nature of the main body activities are different,can also stipulate different procedures in the legislation to apply respectively.On the legislative mode of bankruptcy causes,we can combine generalizationism with enumeration doctrine to enhance the operability of law application.In the setting of the conditions for applying for bankruptcy,the doctrine of authority should be added to make up for the deficiency of the doctrine of applying for bankruptcy.Finally,the special system of Chinese consumer bankruptcy system should include bankruptcy exemption system,free property system,loss of right and recovery of right system.In the United States,consumer bankruptcy procedures were stipulated in Chapter 7,Chapter 11 and Chapter 13 of the Bankruptcy Act of 1978.Most natural persons and debtors choose to apply Chapter 13 bankruptcy procedures.However,in the Consumer Bankruptcy Reform Act of 2020,the United States creates a new Chapter 10 to replace the existing dual-track system of Chapter 7 and Chapter 13,cancels the right of natural person debtor to choose Chapter 7 and abolishes Chapter 13,and establishes a unified bankruptcy application procedure.German Bankruptcy Law in 1999 set up the ninth part of "Consumer Bankruptcy Procedure and Other Minor Bankruptcy Procedure" for consumer bankruptcy,and the debtor must carry out the compulsory debt liquidation procedure outside the court before filing the bankruptcy application,which is the pre-condition for opening the bankruptcy procedure in the court.China’s Taiwan,on the other hand,provides relief for consumers and debtors through special Consumer Debt Clearing Regulations,which sets up a double-track system of reconstruction and liquidation,and adopts pre-bankruptcy negotiation procedure and summary bankruptcy procedure.In order to improve the efficiency of case trial,reduce the pressure of court trial,and try the optional out-of-court debt liquidation procedure,the simple bankruptcy procedure should be specially set up on the basis of the traditional reconciliation,restructuring and liquidation procedure.