Personal bankruptcy system will not become an old umbrella
Free from "honest and unfortunate" debtor Shenzhen personal bankruptcy regulations "breaking ice" expert interpretation
To establish a personal bankruptcy system, it is necessary to relieve the worries of entrepreneurs to the greatest extent, stimulate the entrepreneurial enthusiasm of market players, encourage innovation, and tolerate failure, so that entrepreneurial innovation continues to be the most fundamental driving force for Shenzhen's economic development.
The personal bankruptcy system can not only ensure that creditors achieve fair and reasonable discount compensation, but also free the honest and trustworthy debtors from the predicament of high debts.
Regarding the scope of free property, scope of exemption, abuse of exemption, etc., relevant laws and regulations clearly stipulate that the personal bankruptcy system will not become an umbrella for dishonest business owners
□ Reporter Zhao Li
□ Qin Huamin, an intern in this newspaper
Fourteen years after the promulgation of the Enterprise Bankruptcy Law, the personal bankruptcy system finally broke the ice in Shenzhen.
On June 2, the "Shenzhen Special Economic Zone Personal Bankruptcy Regulations (Consultation Draft)" (hereinafter referred to as the "Consultation Draft") was announced to the public and solicited opinions. The consultation draft is divided into 13 chapters, including general rules, application and acceptance, administrator, debtor’s property, bankruptcy costs and common debt, declaration of creditor’s rights, creditors’ meeting, reorganization, reconciliation, bankruptcy liquidation, summary procedures, legal responsibilities and by-laws, A total of 157 articles.
This reforming "ice-breaking" move has aroused widespread concern in society. In other words, business owners operating in good faith in Shenzhen but unfortunately going bankrupt will be able to avoid the risk of unlimited transfer of collective debt to individuals and families through the personal bankruptcy system.
Starting from Shenzhen, how does the personal bankruptcy system move across the country? The higher-level laws at the national level have not yet come out. Can the Shenzhen model be replicated in other regions? How can personal bankruptcy achieve a restricted "debt relief"?
Relieve worries
Prevent financial risks
my country's corporate bankruptcy law came into effect in 2007, but in dealing with personal bankruptcy issues, my country has always lacked targeted legal regulations.
Due to the lack of personal bankruptcy system, business risks are transferred to individuals and families, which breaks through the principle of limited liability of legal persons and the spirit of modern enterprise system. At the same time, it also creates a living space for illegal financing channels such as loan sharks and underground banks.
The Legal Work Committee of the Standing Committee of the Shenzhen Municipal People’s Congress pointed out in the relevant statement that the original intention of advancing the legislation of personal bankruptcy regulations was to regulate the rights and obligations of debtors and creditors and other interested parties in order to regulate personal bankruptcy procedures, promote the economic regeneration of honest debtors, and improve the society. Market economy system.
"Establishment of an individual bankruptcy system should relieve the worries of entrepreneurs to the greatest extent, stimulate the enthusiasm of entrepreneurs in the market, encourage innovation, and tolerate failure, so that entrepreneurial innovation continues to be the most fundamental driving force for Shenzhen's economic development." The committee pointed out in the note.
In the civil code just passed, the contract editor clearly prohibits private high-profit lending. In fact, in addition to protecting individual businesses outdoors, the personal bankruptcy system also has an important complementarity with contract editing: preventing financial risks.
Cao Qiyang, judge of the Bankruptcy Trial Division of the Shenzhen Intermediate People’s Court, pointed out: "The personal bankruptcy protection system will be conducive to the establishment of a social credit system. Today’s commercial society needs a sound social credit system. When the social credit system is lacking, various financial risks will arise. ."
As a special economic zone in my country, Shenzhen's personal bankruptcy system first "breaks the ice" here, and it is also related to Shenzhen's institutional advantages.
On January 14 last year, the Shenzhen Bankruptcy Court was officially inaugurated and established. This is the first bankruptcy court in the country. At the same time, the pilot work of the centralized liquidation of personal debts also played a role in promoting the legislation of the personal bankruptcy system.
According to Chen Jingshan, a professor at the School of Civil and Commercial Economic Law of China University of Political Science and Law, the enactment of personal bankruptcy regulations in Shenzhen means that the establishment of a personal bankruptcy system in my country is imperative.
According to Chen Jingshan, the first bankruptcy case in China in Wenzhou in 2019 means that my country's personal bankruptcy legislation has entered a substantive stage of operation and will be promoted to the whole country in the future.
Limited debt forgiveness
Don't have to pay back
The general public concern is: Is it not necessary to repay the money?
"It's not that you don't have to repay the money, but that there is a prerequisite partial waiver." Liu Junhai, director of the Institute of Commercial Law of Renmin University of China, said that the debt of the natural debtor is not directly exempted because of the declaration of bankruptcy, only after the statutory conditions are met, after certain During the supervision period, the debt talent is exempted. During the supervision period, the debtor's life is greatly restricted and there can be no high consumption.
Li Shuguang, director of the Bankruptcy Law and Corporate Restructuring Research Center of China University of Political Science and Law, believes that debt forgiveness is conditional, except for your basic living expenses and basic living security, all money should belong to creditors. Nor does it mean that you will be exempted immediately, for example, the United States will take seven years and Hong Kong will take five years.
In 2019, the country's first personal bankruptcy case was settled in Wenzhou. In this case, Cai Mou, a shareholder of a bankrupt enterprise with a debt of more than 2.14 million yuan, eventually only needed to repay more than 32,000 yuan, and paid off in one lump sum within 18 months. Within 6 years from the completion of the performance, if his family's annual income exceeds 120,000 yuan, 50% of the excess will be used for repayment.
What needs to be clarified is that the personal bankruptcy system means that when a natural person cannot pay off due debts, the natural person is declared bankrupt through statutory procedures, and his remaining assets are fairly distributed to creditors. For unclaimed claims, the natural person is exempted from continuing to pay responsibility Legal System.
Why establish a personal bankruptcy system? Liu Junhai believes that the personal bankruptcy system can not only ensure that creditors realize fair and reasonable discounts, but also free the honest and trustworthy debtors from the predicament of high debts.
"Establishment of a personal bankruptcy system can better help those debtors who are "integrity and misfortune" in accordance with legal thinking. For these debtors, they adhere to the basic principles of good faith, but in the process of entrepreneurship and innovation, due to their subjective maliciousness Other reasons, such as failed financing, broken capital chains, or fraud, have led to high debt." Liu Junhai said.
Liu Junhai believes that the establishment of a personal bankruptcy system can better reflect the principle of fairness and the principle of equality, fairness and compensation among multiple creditors. "Especially according to the characteristics of the creditor’s rights, it is necessary to consider the priority order of guarantee and guarantee when paying off. In the case of unsecured claims, unsecured claims and other unsecured claims should in principle be queued for discounts. Only the personal bankruptcy system can provide fair, reasonable, and compensated opportunities for more than two creditors. The personal bankruptcy regulations can also make up for the shortcomings of China's corporate bankruptcy law."
"The lack of a personal bankruptcy system has led to a serious spread of debt evasion, such as the debtor’s whereabouts is unknown, which will lead to instability in the social and economic order." Chen Jingshan said that the personal bankruptcy system can enable all creditors to obtain fair and reasonable creditor relief, but will not happen. Negative phenomenon of violation of justice. The personal bankruptcy system is a precautionary measure to maintain the stability of the social and financial order. A reasonable personal bankruptcy system helps entrepreneurs to carry out business risks with confidence.
From the perspective of many people in the industry, from a macro perspective, the bankruptcy law is a prerequisite for protecting the rights and interests of debts, because it is very important that "creditors should not borrow money that should not be borrowed." With the personal bankruptcy system, the public The risk awareness will increase, and risk awareness is also a kind of protection for creditors.
With the help of legal means
Prevent malicious debt evasion
Once the borrower declares bankruptcy, it means that it can no longer be collected. Therefore, after the publication of the consultation draft, a reporter from the Legal Daily noted that another issue of general public concern is whether the personal bankruptcy system will be used by Lao Lai as a tool for escaping debts.
Regarding this, the Legal Work Committee of the Standing Committee of the Shenzhen Municipal People’s Congress pointed out that the personal bankruptcy system in a sense provides a predictable and reliable guarantee for debtors who are “honest and unfortunate”. Therefore, the basic value orientation that personal bankruptcy legislation should establish is that only honest and trustworthy debtors can be protected by the personal bankruptcy system when they are unfortunately caught in a debt crisis, and help them to escape from the debt crisis and participate in social and economic activities again. Create more wealth. For those debtors who maliciously evade debts or commit bankruptcy fraud, not only can they not evade debts through bankruptcy, but they must also be prevented and punished by legal means.
Chen Jingshan's view is that the relevant laws and regulations have clear provisions on the scope of free property, the scope of exemption, and the abuse of exemption. The personal bankruptcy system will not become an umbrella for dishonest business owners.
"First of all, want to pass the bankruptcy exemption costs, from the experience of East Asia, Japan and South Korea, we can see that the implementation of the personal bankruptcy law is not a problem of abuse of procedures, but the application of bankruptcy procedures. Second, the legal restrictions of bankrupt individuals Sexual regulations restrict business owners. Individual bankrupts will have various restrictions on entrepreneurship, industry, and credit reporting. Finally, individuals will be held criminally responsible for malicious bankruptcy." Chen Jingshan said.
One reality that deserves attention is that after experiencing a thunderstorm in the P2P online lending industry, Chinese society has produced a large number of overdue borrowers. With the establishment of an individual bankruptcy system, can this group of people apply for bankruptcy to forgive debts.
Regarding this issue, Ding Nan, a member of the Shenzhen Municipal Government’s Legal Expert Advisory Committee and the Shenzhen Municipal People’s Congress Standing Committee’s Supervision and Internal Affairs Judiciary Committee, believes that if he meets the conditions for bankruptcy application, he will live in the Shenzhen Special Economic Zone and participate in the Shenzhen Social Insurance A natural person who has been at least three years old and whose assets are insufficient to pay off all debts due to production, operation and living consumption, or obviously lacks solvency, may apply for bankruptcy liquidation. But there is no doubt that meeting this condition does not necessarily result in debt cancellation.
Liu Junhai told reporters in the "Legal System Daily" that in view of how to prevent the moral hazard of individual debtors and avoid "false bankruptcy, true debt evasion", my country's criminal law established fraud bankruptcy and false bankruptcy crimes, and made relevant penalties. Therefore, he suggested that on the one hand, the personal bankruptcy system opened a green channel for "honest and unfortunate" debtors. On the other hand, it also blocked the unscrupulous debtors from abusing the institutional space of the personal bankruptcy system. The debtor has no rules to avoid the law."
"If the personal bankruptcy system is suable, arbitrable and enforceable, then the risks behind it will be manageable." Liu Junhai said that preventing personal abuse of the bankruptcy system relies on the deterrence and crackdown of criminal law and criminal liability; The precaution of personal bankruptcy system; three rely on the supervision of the system; four rely on the investigation of civil liability after the event; five rely on moral education and moral publicity; six rely on the establishment of a sanctions system for dishonesty, to let the debtor understand the cost of dishonesty.
Keep up with the system
Nationwide implementation is expected
It is worth noting that due to the impact of the new coronary pneumonia epidemic, the downward pressure on the domestic economy has increased, and the introduction of the personal bankruptcy system may become part of the social security system needed to deal with the economic depression. Nowadays, the personal bankruptcy system is "breaking ice" in Shenzhen. How far does the national bankruptcy system go?
Liu Junhai hopes that a separate personal bankruptcy law will be enacted to clarify the legislative purpose, basic principles of bankruptcy procedures, basic procedures of bankruptcy, protection of creditors, bankruptcy settlement system, etc.
However, Chen Jingshan made a different point of view. He believes that in the current system of bankruptcy law, a single chapter of personal bankruptcy can be established without a separate personal bankruptcy law.
Chen Jingshan analyzed that in the system design, there are the following key issues: application requirements, balance between authorityism and party applicationism; setting of procedures, reorganization, liquidation, setting of out-of-court reorganization or settlement procedures, scope of claims Determination, declaration and verification of creditor’s rights; actualization of livelihood expenses; changes in repayment periods in personal reorganization procedures; court trial mechanisms, etc.
Regardless of whether it is legislation alone, at present, domestic personal bankruptcy lacks institutional support at the system and operational levels.
Lu Lin, the promoter of personal bankruptcy legislation in Shenzhen, also frankly stated that social property now exhibits diverse characteristics, and property inquiry and identification will also be a difficult point in the implementation of the personal bankruptcy system.
On July 16, 2019, 13 ministries and commissions such as the National Development and Reform Commission issued the "Accelerating the Improvement of the Reform Scheme for the Exit of Market Subjects." The plan clearly proposes to study and establish an individual bankruptcy system, focusing on solving the problem of joint liability of natural persons arising from bankruptcy of enterprises. It is clarified that natural persons assume liabilities related to production and business activities due to guarantees and other reasons and can be reasonably exempted from liability according to law. Gradually promote the establishment of a natural person’s eligible consumption liabilities that can be reasonably exempted from liability, and eventually establish a comprehensive personal bankruptcy system.
In addition, other regions of the country have implemented a personal debt liquidation system similar to the personal bankruptcy system, such as the “Implementation Opinions on Centralized Liquidation of Personal Debt (Trial)” issued by the Intermediate People’s Court of Wenzhou City, Zhejiang Province, and the “Implementation of Implementation” Procedures for Reviewing Procedures for Liquidation of Personal Debt (Provisional). There are already judicial cases applying the personal debt liquidation system.
According to Liu Junhai, Shenzhen can provide some reproducible and expandable experience for the implementation of the national personal bankruptcy system. However, the key issue in system design is to open the door to legislation, transparent legislation, and democratic legislation. First, from the demand side, carefully evaluate the interests of the users of the personal bankruptcy system, including the core interests of these "honest and unfortunate" debtors and the interests of creditors, but also pay attention to other stakeholders, such as the debtor's family members and his Employers, etc. Second, the debtor must declare bankruptcy, enjoy the protection of the bankruptcy system, and carry out the exemption according to law, which has to pay a price, which is to sacrifice the debtor's personal privacy.
Many people in the industry also put forward suggestions on the relevant content in the consultation draft. It should be further clarified how to balance personal bankruptcy and privacy protection, bankruptcy procedures and the rights of inquiry and management of interested parties during the investigation period of exemption from liability. To prevent infringement of the debtor's other normal legal rights and interests.