Study On Debtor’s Free Property In Personal Bankruptcy System

In order to protect the basic survival and development rights of "honest but unfortunate"debtors and dependent family members,the personal bankruptcy system should retain the necessary debtor’s free property,which is the difference between the personal bankruptcy system and the corporate bankruptcy system.How to determine the scope of the debtor’s free property is very important,because in the debtor’s limited share of property,there is an opposing relationship between ensuring the realization of reasonable creditor’s rights and ensuring the basic survival and development rights of the debtor and dependent family members.In order to find a balance between the debtor and creditors to ensure maximum protection and respect for all interests,it is necessary to scientifically identify the debtor’s free property.The current practice in China’s personal bankruptcy pilot program for debtors to have free property is mainly to reserve necessary shares for debtors and their dependent family members.However,due to the fact that personal bankruptcy in China is still in the pilot stage and not yet mature,research on the free property owned by debtors is not thorough enough.It is necessary to study the problems existing in the pilot and propose solutions in order to develop a nationwide applicable personal bankruptcy law in the future.The current problems mainly include:firstly,the lack of basic principles for the determination of the debtor’s free property,and the debtor’s free property needs to be determined under the guidance of these basic principles.Secondly,there is no specific standard for determining the debtor’s free property.Currently,China mainly determines the debtor’s free property by listing some items.Based on this,the "Shenzhen Special Economic Zone Personal Bankruptcy Regulations" have set overall limit limits and delegated some standard formulation authority to judicial authorities.It remains to be discussed whether this method can be promoted nationwide.The third issue is that the scope of subjects entitled to the freedom of property rights of the debtor is not accurate enough to effectively protect the interests of the debtor and other rights holders.Finally,considering that the debtor is still active in social relations after applying for bankruptcy,there are currently no relevant regulations on how to distribute the property obtained after the commencement of bankruptcy proceedings.In order to protect the basic survival and development rights of debtors and dependent family members in personal bankruptcy,the following content should be clearly defined:firstly,when recognizing the debtor’s free property,the principles of minimum limit,flexible applicability,and personal exclusivity should be adhered to.The second approach is to establish a unified limit for some types of property,while linking other types of property to the local minimum living standard to determine the specific method for determining the debtor’s free property.The third is to clarify that the debtor and family members who rely on it for survival have the subject authority to claim the debtor’s free property.Finally,regarding the property acquired by the debtor after the commencement of bankruptcy proceedings,it is divided into labor remuneration and non labor remuneration based on their nature,and is regulated using a fixed and inflationary model,respectively.