The Research On The Exempt Property System In Personal Bankruptcy

For a long time,the debate on the legislation of personal bankruptcy law in China has hindered the legislative process of personal bankruptcy law.With the successive pilot programs of personal debt centralized liquidation and personal bankruptcy,China’s personal bankruptcy system has begun to take shape.The free property system,as a property exemption system for the personal bankruptcy law to achieve the debtor’s rescue function,plays an important role in safeguarding the survival and development rights of the debtor and its dependents,reducing social relief pressure,and encouraging market entities to self employ.However,the existing pilot free property system has problems with varying limits on the provision of exemption rules and unclear exemption rules for some free property in terms of substantive rules.Neglecting the protection of the procedural rights of the debtor and its dependents in program design,and existing norms do not regulate the debtor’s property disposal behavior that violates the concept of free property system.All of these problems have adverse effects on judicial practice to varying degrees.In existing cases,it highlights the issues of the narrow scope of free property,conflicts between the period of free property protection and the overall exemption amount,and inconsistent calculation criteria for "essential living expenses".Review of foreign advanced legislative experience,there is no lack of meticulous legislation on the free property system.In judicial practice,there has been a gradual formation of regulatory methods for the debtor’s free property conversion behavior and the use of free property for individual settlement behavior.The free property system should be based on the national conditions of our country.In terms of substantive rules,the limit rules of free property should be made flexibly,and the minimum wage standard should be used as a unified benchmark for calculating "essential living expenses".Special exemption rules should be set for those which are of great significance for debt repayment and the economic recovery of debtors.In terms of procedural rules,it is necessary to expand the scope of the subject of application for free property in the current regulations,establish more comprehensive rules for determining the list of free property,and establish relevant objection procedures.In addition,in terms of the regulation of the debtor’s behavior,the regulation rules can be constructed on the basis of balancing the payment of creditor’s rights and the protection of the debtor in combination with foreign experience.