Research On Personal Bankruptcy System In China

With the deepening of market-oriented economic reforms,the social conditions for establishing a personal bankruptcy system in China have become increasingly mature.Under the call of the Party Central Committee’s policies,pilot projects of the personal bankruptcy system have been gradually implemented in various regions,and it is imperative to enact personal bankruptcy legislation at the national level in the future.The primary task at the initial stage of China’s personal bankruptcy system is to clarify which subjects are eligible to apply for personal bankruptcy procedures under what conditions.This article divides this task into two parts for research: first,the establishment of personal bankruptcy capacity,answering the qualification question of debtors for applying the personal bankruptcy system and exploring the implementation path from local pilot legislation to national basic institutional legislation;second,the construction of personal bankruptcy procedures,specifically defining the reasons for debtor bankruptcy,clarifying the criteria for initiating bankruptcy procedures,and providing a framework for the practical application of bankruptcy with operability.This article believes that regarding the establishment of personal bankruptcy capacity,China should adhere to the legislative concept of general bankruptcyism and recognize that all natural persons are entitled to bankruptcy qualification.However,considering the uneven economic development between eastern and western regions of China,it is recommended to adopt a "progressive" legislative strategy,initially implementing phased pilots in different regions and gradually extending it to the whole country when the time is ripe,achieving unified legislation at the national level.Regarding the construction of personal bankruptcy procedures,China can learn from the provisions of the existing "Enterprise Bankruptcy Law," defining the debtor’s bankruptcy reasons in a comprehensive manner,granting corresponding discretion to judges,and strengthening the anti-fraud function of bankruptcy reasons.Considering the unique characteristics of the personal bankruptcy system,a simplified bankruptcy procedure should be established: first,adopting a two-tiered structure combining incourt and out-of-court procedures,with out-of-court conciliation procedures and incourt reorganization and liquidation procedures;second,moving the out-of-court conciliation procedure forward,reasonably "diverting" the work of personal bankruptcy to alleviate the caseload pressure on the judicial system;finally,handling the in-court bankruptcy procedure with the "reorganization procedure as the main and liquidation procedure as the auxiliary" model,and applying the liquidation procedure when conditions are met.