For "honest and unfortunate" entrepreneurs,
Shenzhen court firstly tried the first anniversary investigation of the personal bankruptcy system
□ Our reporter Tang Rong
□ Li Wenqian, a trainee reporter of this newspaper
Humou originally ran an educational institution in a shopping mall in Shenzhen, Guangdong. Five years ago, his store had to be closed due to the closure of the mall, resulting in Humou carrying a debt of more than 4.8 million yuan.
Over the years, Humou has been working hard to repay his debts, and even sold his only house, but still has a debt of more than 1 million yuan.
In 2020, due to various reasons, Humou had no source of income - the single mother fell into deep confusion.
How to do?
The "Shenzhen Special Economic Zone Personal Bankruptcy Regulations" (hereinafter referred to as the "Regulations") implemented on March 1, 2021 gave her a glimmer of hope.
In June 2021, Humou submitted an application for personal bankruptcy liquidation to the Shenzhen Intermediate People's Court. After the bankruptcy liquidation procedure, the court made a ruling to declare him bankrupt five months later.
Taking the ruling from the judge, Hu Mou was relieved: "I feel like I have been 'reborn'!"
It is not just someone who is "reborn".
A reporter from the "Rules of Law Daily" recently interviewed and learned that since the implementation of the "Regulations" for a year, the Shenzhen Intermediate People's Court has steadily promoted the trial of personal bankruptcy cases, paid attention to sorting out the trial procedures, and helped to ensure the new development pattern.
As of February 28 this year, a total of 1,031 personal bankruptcy applications have been received, 594 applicants have been interviewed and counseled, 74 personal bankruptcy application reviews have been initiated, 59 individuals have been investigated through hearings, 25 bankruptcy proceedings have been initiated, and a total of 72 cases have been concluded.
"The establishment of a personal bankruptcy system can relieve the worries of entrepreneurs, stimulate the entrepreneurial enthusiasm of market entities, and create a stable, fair and predictable world-class business environment under the rule of law." Xu Yangyang, deputy director of the Bankruptcy Law Research Center of Renmin University of China, commented, Shenzhen provides the basis and practical experience for my country to formulate national personal bankruptcy legislation.
Protect human rights and save costs
Easy first, then difficult to advance steadily
After the court made a ruling to declare Humou bankrupt, according to the "Regulations", she will enter a three-year exemption inspection period, during which all remaining income will be used to repay debts, after deducting necessary monthly expenses.
When the inspection period expires, Humou may apply for relief of his unpaid debts in accordance with the "Regulations".
"After 3 years, I will be free and live a normal life like other ordinary people." Humou sighed.
Like Hu Mou, Zhang Mou also benefited from the implementation of the "Regulations".
Zhang resigned from the university in 1986 to "go to the sea" to do business, served as the manager of a company in Shenzhen, and served as the legal representative of the company.
In 1999, the company signed a loan contract of 1.83 million yuan with the bank, and Zhang and others signed the "Loan Guarantee Guarantee Contract" to assume joint and several guarantee responsibility for the loan.
Subsequently, the company was sued for failing to repay the loan on time. The court ordered the repayment of the loan and the corresponding interest, and Zhang and others were jointly and severally liable for repayment.
Later, the company closed down, the business license was revoked, and the debt was all "pressed" on him.
In 2009, Zhang's real estate was auctioned by the court, and more than 950,000 yuan of execution money was transferred.
However, the loan debt is not over, except for the basic living expenses, Zhang's monthly pension is deducted to repay the loan, which makes life very difficult for the old man.
On June 7, 2021, Zhang submitted a personal bankruptcy settlement application to the Shenzhen Intermediate Court. At this time, he was 76 years old.
After review, it was confirmed that his secured debt still had 970,000 yuan.
Later, with the assistance of the administrator, Zhang and the creditor reached a settlement plan: after fulfilling the payment obligation of 52,000 yuan, the remaining unpaid debts will be waived.
On October 8, the bankruptcy reconciliation case of a certain person Zhang was confirmed by the court.
"Zhang Mou is one of the first batch of entrepreneurs who responded to the call of the state to resign from public institutions and go to the sea. Encouraging entrepreneurial spirit and helping entrepreneurs make the bottom line is also the temperature of the personal bankruptcy system." Zhang Rui, the presiding judge of the Bankruptcy Court of Shenzhen Intermediate Court, said that the case It not only reflects the concern and protection of the personal bankruptcy system for the basic human rights of the debtor, but also saves the cost of meaningless recovery for the creditor.
Fan Qingfeng, deputy to the National People's Congress and vice president of Shenzhen High-tech Investment Group Co., Ltd., believes that the personal bankruptcy system protects some relevant social and public interests of debtors, and also protects the relevant rights and interests of creditors, achieving a win-win situation for both parties, and encouraging more innovators. Get rid of the ideological burden and make greater contributions to the development of Shenzhen.
Hu Mou and Zhang Mou are the two lucky ones after the implementation of the "Regulations".
In fact, in the first month after the implementation of the "Regulations", the Shenzhen Intermediate Court received 260 personal bankruptcy applications. By the beginning of August of that year, the total number of applications had risen to more than 640.
However, considering that the pilot reform of personal bankruptcy has greatly challenged the traditional concept and the existing system, it must be carried out steadily and steadily to ensure the realization of reform and stability, legal effect and social effect. In the end, only 34 applications entered the stage of filing and review. 8 applications were formally accepted.
According to reports, in the early days of the implementation of the "Regulations", there was a strong demand for personal bankruptcy applications. Shenzhen Intermediate Court received 19 applications in one day. However, the applicant's understanding of the personal bankruptcy system and the legal consequences need to be further deepened. , Insufficient pre-arrangement of debts, resulting in high difficulty in reviewing application materials, many refunds and supplements, and a long cycle.
In this regard, Shenzhen Intermediate Court made active deployments, sorted out the application situation one by one, studied and judged the countermeasures in time, and gradually explored and established the application triage identification mechanism such as written material verification, telephone Q&A, and one-to-one interview counseling.
At the same time, guide the Shenzhen Bankruptcy Administrators Association to organize legal aid forces, conduct one-on-one telephone counseling for applicants who need supplementary materials, and assist them in preparing materials that meet the filing requirements.
The judges of the bankruptcy court interviewed nearly 300 applicants. Those who did not live in Shenzhen, did not pay social security continuously, submitted unqualified materials, did not truthfully declare information, and caused debts due to excessive consumption, excessive speculation, participation in gambling, etc., obviously did not meet the requirements. Applications required by the Regulations shall be returned for processing after being explained in accordance with the law.
There are also some applicants who, after the judge's interpretation, recognize the requirements and legal consequences of personal bankruptcy procedures, and voluntarily withdraw their applications or change their application information after evaluating their own circumstances.
ok "honest and unfortunate"
Reasonable consideration of the interests of all parties
Li applied for personal bankruptcy, but the Shenzhen Intermediate People's Court found during the review that there was a big difference between the operating losses and actual expenditures described by Li and the amount of debt, and Li agreed when he and his ex-wife agreed to divorce that he should bear all the joint debts of the husband and wife. , filed for bankruptcy after repaying new debts.
The collegial panel believed that this situation made it impossible to determine that Li had a reason for bankruptcy, and ruled that it should not be accepted on May 14, 2021.
The judge who handled the case said that the court carefully reviewed the debt property information and marriage and family relations declared by Li through written examinations, interviews with judges, hearing investigations, etc., and examined whether Li had the bankruptcy reasons specified in the "Regulations". Demonstration to prevent improper debt arrangements, use of procedures to evade debt and other behaviors, and provide effective experience for identifying whether the debtor is "honest and unfortunate".
In contrast, the situation of the debtor Liang, who was successfully reorganized in the first personal bankruptcy case, is quite different.
In 2018, Liang chose the Bluetooth headset market to start his business. Because he has been unable to obtain stable customer resources, he has not been able to open the market and achieve profitability. In addition, due to the impact of the epidemic, the debts have increased, and he is unable to repay the interest and late fees.
On March 10, 2021, Liang applied to the Shenzhen Intermediate Court for personal bankruptcy.
After investigating Liang's property income, creditor's rights and debts, and family situation, and delineating the scope of exempted properties, the administrator assisted Liang in making a draft personal bankruptcy reorganization plan.
The draft makes it clear that after retaining the necessities of life and 7,700 yuan per month for the basic living expenses of a family of four, Liang will repay the entire principal in three years in installments, and creditors will waive interest and late payment fees.
The draft was approved by the creditors' meeting and approved by the Shenzhen Intermediate People's Court.
The Regulations protect the "honest and unfortunate" debtor, and whether the debtor tries his best to repay the debt is an important criterion for judging whether the debtor is "honest".
Even in bankruptcy proceedings, trying to repay the debt is still a critical requirement for the debtor.
Attempts to "default" through bankruptcy are neither allowed by the system, nor can they pass the procedural test, and cannot obtain bankruptcy relief.
The Shenzhen Intermediate People's Court attaches great importance to the review of the debtor's debt repayment when reviewing a bankruptcy application and advancing the case handling, in order to prevent the debtor's "free rider" mentality or even bankruptcy fraud.
"In the bankruptcy and reorganization case of a certain Liang, Liang showed a strong willingness and efforts to repay debts. After failing to start a business, Liang actively looked for a job to make a living; before filing for bankruptcy, the family saved money and insisted on repayment; They all actively cooperated in the bankruptcy proceedings, fully and comprehensively fulfilled their obligation to declare truthfully, and the personal and family property and debts declared are basically the same as the final verification results of the administrator.” said Cao Qixuan, president of the Bankruptcy Court of Shenzhen Intermediate Court, that most creditors A supervisory opinion was also issued, arguing that he belonged to an "honest and unfortunate" person, which is why the draft reorganization plan was able to pass without a hitch.
Cao Qixuan told reporters: "In handling bankruptcy cases, we emphasize the need to fully protect the creditor's right to apply for bankruptcy of the debtor and supervise the bankruptcy of the administrator. The purpose is to reasonably take into account the legitimate rights and interests of all parties and ensure the credibility of the bankruptcy trial."
Xu Yangyang pointed out that the "Regulations" provide "honest and unfortunate" natural persons with legal protection after encountering a debt crisis, and allow individuals to enter bankruptcy proceedings on the premise of retaining the most basic free property after their business fails, which is beneficial to the entire social market. orderly development of the economy.
As far as society is concerned, if a person is in financial distress and the law does not provide relief, then the person may become the object of state assistance at light level, and may commit illegal acts at worst. Therefore, although personal debt is a personal reason, However, it will have direct or indirect social impact, and handling personal debts through the personal bankruptcy system will help safeguard social and public interests.
Regarding the debt evasion behavior that the public is worried about, Chen Xiahong, a researcher at the Bankruptcy Law and Corporate Restructuring Research Center of China University of Political Science and Law, believes that formal constraints and sanctions should be used to prevent debt evasion by abusing the personal bankruptcy system.
When revising the bankruptcy law in the future, the criminal law should be revised accordingly, and more detailed provisions should be made on the criminal punishment of illegal acts that may occur in personal bankruptcy proceedings.
In addition, it is also necessary to reform the existing criminal justice system, and establish a bankruptcy crime punishment mechanism among government departments, procuratorial organs and courts.
Still crossing the river by feeling the stones
Continuously improve the supporting system
Promote and support the establishment of the Shenzhen Bankruptcy Administration Office, deepen the separation of the two powers, explore and clarify the division of labor between the court and the government in handling bankruptcy, and gradually improve the four-in-one bankruptcy handling system of "court adjudication, institutional guarantee, administrator enforcement, and public supervision"; The Support Administration has issued the "Shenzhen Interim Measures for the Registration and Disclosure of Personal Bankruptcy Information", and the bankruptcy information registration and disclosure system has been effective... In the past year, the Shenzhen Intermediate People's Court has continuously promoted the improvement of the supporting system for personal bankruptcy.
People from all walks of life are also very concerned about the progress of the reform of Shenzhen's personal bankruptcy system, and many people expect this innovative measure to be extended.
"The first cases of personal bankruptcy reorganization, reconciliation and liquidation have all been ruled, and the design of the personal bankruptcy system has been fully activated, but there is still a long way to go to promote the personal bankruptcy system to the whole country." Cao Qixuan said frankly that in the face of a large number of applications and complex debts In other circumstances, many important supporting mechanisms still need to be established and improved, and the bankruptcy court is also "crossing the river by feeling the stones" in handling individual bankruptcy cases.
As the bankruptcy administrator of the first personal bankruptcy reorganization case, Du Yanzhi is responsible for checking the debtor's property status, formulating property distribution plans, and managing, supervising, and assisting in the implementation of the plan.
In her view, personal bankruptcy is more difficult to do than business bankruptcy.
As an economic entity, an enterprise has passed the industrial and commercial registration, has laws to abide by, and has a clear understanding of the basic situation. However, there is no transparent requirement for the financial status of natural persons, and the "tricky" declaration of personal property is not easy to be found.
"The personal bankruptcy system affects the whole body, and it needs a set of closely connected supporting systems to support it." After organizing and coordinating judges to talk with hundreds of applicants one by one, Jing Xiaojing, director of the Comprehensive Office of the Bankruptcy Court of Shenzhen Intermediate People's Court, said: I feel that whether the supervision and punishment mechanisms for property declaration and investigation, disclosure of bankruptcy information, and anti-bankruptcy fraud can be quickly established and improved is the key to whether the personal bankruptcy system can be explored and fully advanced.
The relevant person in charge of Shenzhen Intermediate Court told reporters that Shenzhen is a city that encourages innovation and tolerates failure. The reform of the personal bankruptcy system has just started. In the next step, Shenzhen Intermediate Court will continue to summarize practical experience and continue to promote the improvement of a series of supporting systems——
Improve the pre-application guidance system.
Because there is no personal financial system, debtors often lack financial management capabilities, and it is difficult to accurately and comprehensively provide personal and family property and debt materials, which has also become a major problem for the court to review bankruptcy applications.
At present, the Shenzhen Intermediate Court has passed the "one-on-one" verification by judges to guide debtors in sorting out applications and selecting appropriate procedures. The next step will be to actively explore and support the Shenzhen Bankruptcy Administration's design in accordance with the "Regulations" to undertake the function of personal bankruptcy application counseling.
Improve the information registration and disclosure system.
The Shenzhen Intermediate Court will speed up the coordination with the Shenzhen Bankruptcy Administration Office, strengthen the interconnection between the "Deep·Breakout" platform and other information disclosure platforms, ensure that bankruptcy information is fully and timely disclosed, and further protect the creditors' right to know and supervision. .
Deepen the linkage between the government and the government, promote the integration and interaction of bankruptcy information and credit information, promote the debtor's realization of credit regeneration while realizing the economic regeneration, and promote the financial institutions and other related credit evaluation institutions to improve the credit evaluation mechanism, and help the construction of my country's social credit system.
Push for out-of-court settlement rules.
Shenzhen Intermediate Court will refer to Germany and other foreign experience, explore the establishment of pre-procedures for bankruptcy and reconciliation, and improve the connection mechanism with in-court reconciliation and confirmation of reconciliation agreements; introduce financial institutions, professional intermediaries, and legal aid to promote the diversified settlement of debt disputes and provide debtors. Diversified and convenient debt settlement methods also provide an effective basis for court review and judgment.
Improve the construction of anti-bankruptcy fraud mechanism.
By establishing a debtor's property declaration system, bankruptcy information publicity system, and improving the legal liability system, etc., and improving the anti-bankruptcy fraud system, and establishing a transparent, open and traceable bankruptcy information registration and disclosure system, the debtor can be "bankrupt under the sun".
"The establishment of a personal bankruptcy system is a practical need to serve and ensure the high-quality development of the socialist market economy, safeguard social and public interests, optimize the business environment under the rule of law, and promote the construction of a social credit system. Facing the ever-increasing number of personal bankruptcy applications and problems that arise from time to time Difficulties, Shenzhen Intermediate Court will rise to the challenge, continue to explore, and make multiple breakthroughs, promote the in-depth development of personal bankruptcy reform, and provide pilot experience for the national personal bankruptcy legislation." The person in charge said.