Research On The Definition And Division Of Debtor’s Property In China’s Personal Bankruptcy Legal System

In the process of promulgating the Bankruptcy Law,China has repeatedly suggested that individual bankruptcy should be included in the scope of its regulation,but ultimately failed to achieve its goal.Therefore,China’s Bankruptcy Law is called"half bankruptcy law".However,with the continuous development of society,the lack of personal bankruptcy legal system causes more and more influence.In the process of market economy development,a large number of commercial entities exist in the form of micro business,e-business,self-employed and so on.However,these entities have less ability to resist risks.Once they encounter risks in the fierce market competition,it is very easy to cause the consequences of operation and investment failure.They are deeply in debt crisis,but they are unable to extricate themselves.It is difficult to withdraw from the market,and even more difficult to have the opportunity to "make a comeback".Due to the lack of protection of personal bankruptcy legal system for a long time,debtors often "lose contact" "run away" or even commit suicide.This result not only seriously affects the rights and interests of both parties,but also is a serious hidden danger to the healthy development and stable operation of society.In recent years,in order to solve the problem of difficult implementation,improve the withdrawal mechanism of market subjects,optimize the business environment,the Supreme People’s Court,the National Development and Reform Commission and other departments have issued a series of policy documents related to the personal bankruptcy,from carrying out the pilot work corresponding to the function of personal bankruptcy legal system,to promoting the establishment of personal bankruptcy system step by step,and then to carrying out personal bankruptcy In the pilot reform of property system,the legislative process of personal bankruptcy is accelerating.In addition,local exploration is also in full swing.Wenzhou Intermediate People’s Court,Zhejiang Higher People’s Court,Dongying Intermediate People’s Court and other local courts have successively issued regulations on personal debt liquidation documents.What’s more gratifying that the first personal bankruptcy law in China,namely the Shenzhen Special Economic Zone personal bankruptcy regulations,has been officially implemented on March 1,2021,and Shenzhen bankruptcy administration has been established to manage bankruptcy affairs and go online to carry out business in the cocoon breaking system.As of May 25,2021,Shenzhen intermediate people’s court has received more than 400 bankruptcy applications and ruled to accept 5 of them as the first batch of individual bankruptcy cases.These exploration and practice activities have a pioneering significance,and have accumulated experience for the establishment of the legal system of individual bankruptcy in China.As the core content of the personal bankruptcy legal system,the debtor’s property system is mainly reflected in the following aspects:first,the personal bankruptcy procedure begins because the debtor’s property cannot pay off all the debts,and ends because the property distribution is completed.Second,because the personal property status belongs to personal privacy,and the income and expenditure of property can not be recorded in the accounting books like enterprises,it is difficult to find out how much property the debtor has in practice.Third,in our country,the family members have close relationship with each other,and the property is easy to be confused,so it is difficult to make a clear distinction between the debtor’s property and its family property.Fourth,the bankruptcy of debtor is different from the bankruptcy of enterprise legal person.After the bankruptcy of debtor,the subject qualification does not disappear,and the debtor still has to survive,and the dependants also have to survive.But the problem is how to define the standard of retaining property.Too little retention can not meet the basic life of debtor,and too much retention damages the interests of creditors.These characteristics make the debtor property system become the key and difficult content.Based on the fact that China is actively promoting the establishment of the legal system of personal bankruptcy,this paper compares the Personal Bankruptcy Regulations of Shenzhen Special Economic Zone and other documents on personal debt liquidation,and finds that the contents of the Personal Bankruptcy Regulations of Shenzhen Special Economic Zone are comprehensive and standardized,while there are few provisions on the debtor’s property in other documents.So,this paper uses the methods of literature research,comparative study and case study,taking the Personal Bankruptcy Regulations of Shenzhen Special Economic Zone as the main research object,combining with the personal debt liquidation documents issued by Wenzhou Intermediate People’s Court,Dongying Intermediate People’s Court and Zhejiang Higher People’s Court,referring to the foreign legislation,and studying the personal bankruptcy cases,this paper focuses on the definition and division of the debtor’s property problems,in order to contribute to the improvement of legislation.In addition to the introduction and conclusion,this paper mainly includes the following four parts.The first part is an overview of the personal bankruptcy legal system and the debtor’s property.Through a brief introduction,we have a preliminary understanding of the personal bankruptcy legal system and the debtor’s property,and introduce the importance of the debtor’s property in personal bankruptcy.The second part is the definition of the scope of the debtor’s property,focusing on defining the scope of the debtor’s property in time and space,and exploring how to define the debtor’s property,especially in the case of one spouse’s bankruptcy.The third part is the division of the debtor’s property.In terms of composition,the debtor’s property is divided into exempt property and bankruptcy property.This paper discusses the exempt property in detail from three aspects of basic theory,legislative mode and constitution,and introduces how to determine the scope of bankruptcy property.The fourth part is legislative suggestions.Through the comparative study of the definition and division of the debtor’s property in the current documents,referring to foreign legislative provisions,combined with China’s judicial practice experience,this paper proposes that the current legislation can be improved from five aspects.