Research On The Procedural Setting Of Personal Bankruptcy In My Countr

Against the background of the growing problem of personal debt,China began to explore the centralized liquidation of personal debt.The introduction and implementation of the Personal bankruptcy Regulations of Shenzhen Special Economic Zone marked that China is entering the era of Personal bankruptcy.As the core content of bankruptcy law,bankruptcy proceedings are an effective channel for creditors to receive fair compensation and debtors to receive regenerative relief.The structural design and mode selection of the Personal bankruptcy procedure are related to the balance of interests between the debtor and the society as a whole,and affect the implementation effect of the Personal bankruptcy system.Therefore,this paper starts from the perspective of Personal bankruptcy procedure,based on the analysis of the localization status of Personal bankruptcy procedure setting,and on the basis of learning from foreign advanced experience,discusses the proper path of Personal bankruptcy procedure setting in China.Personal bankruptcy procedure includes in court procedure and out of court procedure.The legislative mode of out of court procedure includes prepositionalism and separatism,and the legislative mode of in court procedure includes limited choice and free choice.In this paper,the issue of Personal bankruptcy procedure setting is concreted as: whether to establish the out of court procedure and how to design the in court procedure structure,and what kind of legislative model should be adopted for the out of court procedure and in court procedure.First of all,through the analysis of the legislation and practice of local Personal bankruptcy,it is found that the essence of the centralized liquidation of individual debts in Zhejiang is to implement reconciliation,and there are problems such as the small scope of application of the procedure and the voting mechanism hindering the process of the procedure;The voting rules for the resolution procedure in the Shenzhen Bankruptcy Regulations are unclear,and there are shortcomings in adopting a free choice model for court proceedings.The inspiration lies in the exploration of the self commissioned settlement system and the pre bankruptcy application counseling mechanism in the Shenzhen Bankruptcy Regulations,which indicates the necessity of establishing a debt liquidation procedure outside the court;The use of limited choice mode in court procedures is more in line with localization needs;The simplified liquidation procedure established by the Taizhou Intermediate People’s Court for "no property can be broken" is worth learning from.Secondly,based on the legislative model of procedures,a comparative analysis of foreign Personal bankruptcy procedures shows that the introduction of administrative power into the construction of out of court procedures can ensure the neutrality and impartiality of debt mediation;Pre court proceedings with limited scope of application can reduce the judicial burden and prevent debtors from getting involved in the proceedings;Establishing simplified restructuring procedures for future debtors with fixed income has become a trend.Finally,taking the experience of local and foreign Personal bankruptcy procedures in China as a lesson,China’s Personal bankruptcy should establish an out of court debt liquidation procedure in the setting of out of court procedures,which should be led by the government and provided with services by third-party institutions and personnel,with the government as the main source of funds,supplemented by raising social funds and charging low fees to both sides of the debt;The out of court procedure adopts a restrictive pre emptive legislative model,which only applies to consumer debtors with fixed income.In terms of the establishment of procedures in the court,the procedural structure in the court is composed of liquidation type procedures and reorganization type procedures,and standard procedures and summary procedures are established respectively.The applicable distinguishing standards of the two include the amount and nature of the debtor’s debt,the number of creditors,the complexity of the debt relationship,and whether there are disputes that need to be resolved through litigation between the debtor and the debtor in the bankruptcy proceedings;The court procedure adopts a limited choice model,and in the application of liquidation procedures,an "income test" is added.Debtors who fail the test will be reorganized first.