The Localization Construction Of Personal Bankruptcy Exemption Property System

The difference between individual bankruptcy and corporate bankruptcy is that the personality of the personal debtor will not be eliminated with the end of the personal bankruptcy liquidation procedure,and the individual bankruptcy debtor continue to survive.Therefore,under the premise of protecting the interests of creditors,the individual bankruptcy legal system should provide relief to honest and unfortunate debtors in order to protect the basic life and encourage them to start over.The exempt property system is the most important systems which can directly reflect the protection of the debtors.The design of the system must focus on the purpose and function of individual bankruptcy legislation.On the one hand,it should protect the basic human rights of the debtor,on the other hand,it also can take into account the protection of the creditor’s property rights.Shenzhen is the first test field for exploring the establishment of the individual bankruptcy system.The Regulation of Shenzhen Special Economic Zone on Individual Bankruptcy and the practical experience in Shenzhen will influence our country’s future individual bankruptcy legal system.When our country establish individual bankruptcy legal system in the future,we cannot blindly transplant extraterritorial legislation.The individual bankruptcy legal system must comply with social changes,conform to the market economy development,combine with the country’s actual situation,and fully consider the differences in regional economic development.The primary purpose of the exempt property system is to protect the survival and development of the debtor and his family.Therefore,the protection of the debtor and his family’s right to subsistence and development must be the first basic principle,and at the same time,it should be limited by the principle of appropriate protection.What’s more,we should pay attention to the principle of flexibility.How to define the scope of exempt property is the core and key of the exempt property system.The scope of exempted property will affect the balance of interests between creditors and debtors,and even affect the operation effect of the entire individual bankruptcy system.Therefore,it is necessary to fully absorb the advantages of various legislative models and choose the legislative method suitable for China’s national conditions.In terms of the types of exempt property,the legislative method of enumeration is adopted,and the specific content of exempt property is listed in detail.In terms of property value,the upper limit of value is set for some special types of properties,and the overall value upper limit of exempt property is not set.Clarify the general composition of exempted property and the specific scope of various types of property,and provide clear guidance for determining the specific composition of exempt property in individual cases.When involving farmer bankrupts,properly handle the issues of land management rights and homestead use rights.In addition,the behavior of exempted property disposal should also be regulated according to the law.It affirms the validity of the conversion of exempted property and the act of using the exempted property to pay off debts,negates the validity of the act of abandoning the exempted property,clarifies the validity of the act of setting a security interest on the exempted property and grants the debtor the right of revocation.