Research On The Determination Of Free Property In Personal Bankruptcy

Personal bankruptcy has a system that is significantly different from that of enterprise bankruptcy in the design of the system,that is,the free property system,which is the disposable property reserved by the law through special provisions in order to prevent the bankrupt natural person from losing the basic conditions for survival and development after bankruptcy,and this kind of property provides a guarantee for the life of the bankrupt person and his care(support,support)dependents after bankruptcy.At present,china’s personal bankruptcy pilot projects are in full swing,and all of them clearly state in relevant documents or legal provisions that necessary property should be reserved for the debtor and his care(support,support)and dependents,that is,free property.However,due to the fact that the provisions on the determination of free property are not complete in the early stage of practice,the provisions on the handling of similar personal bankruptcy cases in Wenzhou,Shandong,Dongying and other places in Zhejiang Province only make a simple list of types of free property,and the latest local legislation on personal bankruptcy,the "Regulations on Personal Bankruptcy in the Shenzhen Special Economic Zone",compared with the previous guiding opinions on the pilot areas of personal bankruptcy,although the value limit and determination procedure of the property have been increased in the determination of free property,there are still certain defects,and the requirements for promoting to the whole country are not met.The current existing problems are mainly concentrated in the following aspects: First,due to the generalization of the property division method and the lack of identification principles,in specific cases,the determination of free property has greater uncertainty in the specific content,and at the same time,the setting of property value limits in the division of property also has a strong regional nature and cannot be promoted nationwide;secondly,the identification procedures for free property are not yet complete,only the main application,review and ruling procedures,and the objection procedure is missing.The protection of the interests of interested parties was inadequate and,finally,the identification of property acquired by the debtor during insolvency proceedings was unclear and failed to strike an optimal balance between the interests of the debtor and creditors.The problems existing in the determination of these properties are bound to be improved in the future,and the specific ways of improving them can be carried out from the following aspects: First,the principle of moderation and flexibility can be established to provide guidance for judges and bankruptcy administrators on the determination of free property,and at the same time,it also provides room for the debtor to seek reasonable free property and ensure the unity of the effect of the free property system;the second is to divide free property by restricting the amount of specific types of property.On the one hand,it changes the uncertainty of the specific content brought about by the original general provisions,so that the debtor has a clearer expectation of the property that can be obtained,on the other hand,it also makes the division of property more universal and better meets the needs of future national legislation;the third is to increase the opposition procedure,clarify the rights and remedies channels of interested parties,and the setting of the objection procedure must not only determine the subject who has the right to raise objections,but also reasonably set the time limit for filing objections;fourth,include the property acquired by the debtor during the bankruptcy procedure into the scope of determination.The determination of this part of the property is not suitable for repeating the declaration and recognition procedure of free property,it is more suitable for classification and determination by identifying the nature of the property,and for the property that belongs to the labor remuneration,it should be partially or completely identified as free property according to the specific circumstances of the case,while for the property not obtained based on labor remuneration,it can be fully classified into the scope of the bankruptcy estate.Therefore,through the improvement of the above aspects,the free property system is more sound,and the personal bankruptcy legislation is promoted from the local to the whole country.