Protection Of The Personal Property Rights Of The Debtor’s Spouse In Personal Bankruptcy

The local pilot legislation on the personal bankruptcy system has been carried out for more than two years,and there have been multiple real cases of joint bankruptcy between spouses.Therefore,the issue of protecting the personal property rights of the debtor’s spouse in personal bankruptcy proceedings discussed in this article is no longer a purely theoretical issue,but has considerable practical implications.The Civil Code of the People’s Republic of China(especially Article 1064 of the Civil Code)have made great progress compared with the past.However,there are still great disputes in judicial practice and academic discussions,which leads to different judgments in the same case in trial practice.In addition,the Regulations of the Shenzhen Special Economic Zone on Individual Bankruptcy also contains vague provisions for joint bankruptcy application and exemption from property.If the above issues are not considered and resolved in the national legislation on individual bankruptcy,it will lead to a situation where the protection of the personal property rights of the debtor’s spouse(non-debtor)is no legal basis when the joint debts cannot be paid off and enter into personal bankruptcy proceedings.This article collects and sorts out the confusion surrounding the application of the rules for the settlement of joint debts of spouses in judicial practice through empirical research to classify the current theoretical discussions on the nature of joint debts of spouses,and the legislative examples of joint bankruptcy applications of spouses in seven countries.On the basis of summarizing the four major issues of the exemption property system,a three-step path to improve the rule system of joint bankruptcy of spouses is established on the paradigm and method of Law and Economics Analysis,the first step as follows: Make up for the "missing" joint debt repayment rules,which identify the joint debt of spouses based on "mutual agreement" and "exercise of daily household agency" as joint and several debts.The scope of responsible property should include the personal property of the non-debtor,while the debts based on "common life" and "joint production and operation" should not be identified as joint and several debts of spouses.The scope of responsible property only extends to the joint property of spouses and the personal property of the debtor,but excludes the personal property of the non-debtor.The second step is to clarify the "vague" rules for joint bankruptcy application of spouses,specifically stipulate the situation of joint and several debts of spouses as an independent debt type: that is,when "joint and several debts" are more than(joint property of spouses and personal property of both parties),joint bankruptcy should be triggered;The third step is to fill in the "blank" in the exempt property rules under joint bankruptcy and try to propose:(1)A relatively complete idea of judicial adjudication;(2)Proposed draft of corresponding provisions;(3)The criteria and formulas for identifying exempt property in joint bankruptcy are intended to fully safeguard the personal interests of the debtor’s spouse from both legislative and judicial levels when "personal bankruptcy" encounters "love" in the future.