On Establishment Of Personal Bankruptcy System Based On Personal Bankruptcy Cases In China

In recent years,the social problem of personal excessive debt is very prominent,the phenomenon that debtors are unable to pay their debts is more common,and the chain reaction caused by personal excessive debt is becoming more and more serious.However,with the vigorous development of China’s market economy,there is a lack of personal bankruptcy legal system to protect it,which is out of date.Bankruptcy law can solve the problem of debtor’s excessive debt once and for all.Countries around the world emphasize establishment of personal bankruptcy law.Some western countries give priority to the establishment of personal bankruptcy system when constructing bankruptcy system.In recent years,our country has implemented the relevant systems of personal debt clearing or personal bankruptcy in some areas on a pilot basis.However,these norms are regional and can’t meet the actual needs of the continuous economic development in all parts of the country,so it is urgent to establish a nationwide general personal bankruptcy system.This paper takes "the construction of personal bankruptcy system" as the research object.On the basis of the existing research,it uses literature research,comparative research,empirical analysis and other methods to carry out research.This paper explains the origin and development of personal bankruptcy system from a theoretical point of view,and discriminates between personal bankruptcy and enterprise bankruptcy.It holds that it is necessary to construct personal bankruptcy system in terms of perfecting legal system,improving civil judicial execution and resisting consumer credit risks.Based on the analysis of the current situation and judicial practice of our country’s personal bankruptcy system,this paper proves the realistic foundation for the establishment of our country’s personal bankruptcy system: the reference provided by the current local laws and regulations,the accumulated experience of judicial practice,the development of credit information system and Internet technology have all laid the foundation for the establishment of system.However,from the analysis of typical cases of personal bankruptcy,the establishment of system still faces many legal problems.First,there are certain problems in the procedure,mainly including the narrow access range of the subject of personal bankruptcy,the lack of necessary reconciliation pre-procedure for specific types of cases,and the unclear positioning of bankruptcy reorganization and bankruptcy liquidation functions;Second,there are some problems in the entity,mainly including the lack of exemption inspection period for bankruptcy reorganization and bankruptcy reconciliation,improvement of loss and reinstatement system.This paper analyzes the enlightenment of relevant legislation cases of foreign countries to China,mainly including: a wide range of subjects applicable to individual bankruptcy,saving judicial resources by adopting reconciliation pre-procedure,and protecting creditors’ interests by adopting the mode of procedural restriction and choice.In conclusion,this paper puts forward the general framework of building individual bankruptcy system in line with China’s national conditions.Firstly,on the choice of individual bankruptcy legislation mode,China should adopt the mode of merger legislation.;Secondly,on the construction of personal bankruptcy procedure,this paper puts forward the principle of "general bankruptcy" to determine the scope of subject access,introduce pre-settlement procedure and limit the procedure choice of reorganization and liquidation;Finally,on the construction of substantive system,this paper puts forward the adoption of mixism to determine the scope of free property,reasonably set the exemption mode,the scope of exemption and inspection period,and define the scope of loss of rights,the conditions of loss of rights and reinstatement of rights.In a word,the establishment of personal bankruptcy legal system is an urgent need to perfect our country’s bankruptcy system,and it is of great significance to solve the difficult problem of civil judicial enforcement and resist the risk of consumer credit.