On The Cultural Orientation In The Insolvency Legislation Of Natural Person

The construction of natural person bankruptcy system is based on culture.Combining with the value of the system,the author formulates the bankruptcy system which accords with the cultural concept of the country.In modern western culture,it is not a shame to pay debts.Bankruptcy of natural person is to provide relief for honest and unfortunate debtors.The bankruptcy system of natural person is in conflict with the traditional culture in China,but there is also a folk custom of bankruptcy of natural persons in our country.Taking this as the system foundation,the fusion culture foundation,and the selective transplantation of foreign system,the natural person bankruptcy system will be more suitable to our cultural psychology after localization transformation.The proper bankruptcy system of natural person will help the debtor get out of debt distress,reduce the tragedy caused by it and improve the business environment.This paper is divided into the following four parts:The first part is "Legal Principles: cultural origin,institutional function and content of natural person bankruptcy." The natural person bankruptcy law originated from ancient Rome.Influenced by debt culture,natural person was strict to the debtor,mainly to protect the interests of creditors.Due to the development of product economy in medieval Europe,in order to promote the prosperity of commerce,under the influence of commercial culture,Italy initiated the bankruptcy law of natural person of merchant bankruptcy.Britain enacted its first modern bankruptcy law in 1883,which was influenced by the Communist ideology and welfare culture spread during the French Revolution.Began to pay attention to the debtor’s right protection,its core system is the residual debt exemption system.The controversy between different theories also reveals that the value function of natural person bankruptcy system is not single in fact.First,the function of human rights protection,this view insists that the function can also be embodied in the natural person bankruptcy system,and the main body of protection also includes the debtor who is unable to pay off.Second,the creditor’s interests protection theory,the theory that natural person bankruptcy system is based on product economy,its main value is to protect the creditors’ rights of fair compensation,to maintain the market mechanism.Third,the maintenance of the overall interests of society,in the bankruptcy state,the interests of the interested parties to adjust at the same time,these interests will be more appropriate to coordinate and adjust,in order to achieve the maximum of social interests as a whole.The second part is "natural person bankruptcy: law and indigenous culture." The debt culture in ancient China changed property issues into moral issues,and changed the relationship between people and things into that between people.In the "face" culture of China,the debtor who fails to pay debts will be negatively evaluated by both society and law.The "shame" of the debtor for bankruptcy is an important factor for the debtor to choose to give up the bankruptcy relief of natural person.One of the obstacles to the establishment of natural person bankruptcy system in China is the unique "discrimination between justice and profit" of Confucianism culture and the prejudice of "no businessman but no traitor" that the ancient ruling class implemented to ensure the stability of the regime.In ancient China,"stopping litigation" was advocated,and the lawsuit culture of disliking litigation prevailed among the people.Many people were reluctant to seek debt liquidation through judicial channels.Under the influence of Chinese culture,it is emphasized that debtors should pay off monetary debts under normal circumstances.As the core part of the modern natural person bankruptcy exemption system construction,its integration with local culture is the key link,to a certain extent,determines the implementation of natural person insolvency system.The third part is "cultural fusion: the construction of natural person bankruptcy system." In China,there is the custom of "sharing accounts" in customary law,and in Tibetan areas there are also folk customs of "Wulandaomo." To some extent,these customs have the form and function of natural person bankruptcy.The prejudice against businessmen in Chinese culture and the distinction between commercial natural person and general natural person debtor is not obvious in modern society,which makes the scope of application of natural person bankruptcy should be limited to general natural persons debtor.Because people believe in "parental authority" in their cultural concept,and believe that litigation may lead to the relationship difficult to repair,so in the bankruptcy proceedings to reconciliation as the pre-procedure,restructuring and liquidation binary choice path.The traditional culture of "forgiveness," "benevolence" and other concepts,which is a favorable prerequisite for the establishment of natural person bankruptcy exemption system,But the strict requirements of the debtor in the traditional culture also make the legislators need to take relatively strict norms in the construction of the exemption system.The fourth part is the conclusion.Under the influence of Chinese culture,it is reasonable and feasible to construct a natural person bankruptcy system in line with Chinese cultural concept.At the same time,it points out that to construct the natural person bankruptcy system which can bring into play the system value needs the combination of the core system and culture,such as the procedure,subject and exemption of natural person.