학술논문
Exemption of Unliquidated Debts in the Context of the Revision of the Bankruptcy Law in China
중국 파산법 개정 배경하에 잔여금면제에 관한 고찰
중국 파산법 개정 배경하에 잔여금면제에 관한 고찰
Document Type
Article
Text
Text
Author
Source
회생법학, 12/31/2023, Vol. 27, p. 237-273
Subject
Language
English
ISSN
2093-6923
Abstract
在我国过度负债的债务人不断增多，司法实务中的“执行难”也占用了大 量的司法资源。个人破产制度能够为陷入严重债务困境的诚信个人提供 一个债务重组机会，维护社会稳定。我国尚未制定出台个人破产法，从 2021年《深圳经济特区个人破产条例》正式实施以来，全国各法院也开 始推行试点个人破产制度的相关工作。个人破产制度中的核心余债免除 规则能够使诚实而不幸的债务人获得充分的保护，免除其剩余债务并促 进其经济重生。为防止余债免除规则被不诚实债务人用作逃债手段，建 立余债免除规则时必须附加相应的限制条件，如不能免除的债务、不能 免除未清偿债务的情形以及考察期的设置等。如何平衡保障债权人合法 权益和保护债务人人权是构建余债免除规则的关键。应该严格把握余债 免除规则的适用，不因条件过于宽泛而损害债权人的利益，使余债免除 规则发挥其价值所在。
In China, the number of over-indebted debtors has been increasing, and the “enforcement difficulties” in judicial practice have also taken up a large amount of judicial resources. The personal bankruptcy system can provide an opportunity for honest individuals in serious debt distress to reorganize their debts and maintain social stability. China has not yet enacted its personal bankruptcy law, and since the formal implementation of the Regulations on Personal Bankruptcy of the Shenzhen Special Economic Zone in 2021, many courts across the country have begun to implement pilot personal bankruptcy systems. The unliquidated debts exemption rule, as the core of the personal bankruptcy system, enables honest but unfortunate debtors to obtain adequate protection, their remaining debts may be exempted and their economic regeneration would be promoted. In order to prevent the unliquidated debts exemption rule from being used by dishonest debtors to evade debts, corresponding restrictions shall be attached to the establishment of the rule, such as the debts that cannot be exempted, the circumstances under which the unliquidated debts shall not be exempted, and the setting of a period of investigation. How to balance the protection of the legitimate rights and interests of creditors and the human rights of debtors is crucial to the construction of the unliquidated debts exemption rule. The application of the rule of unliquidated debts exemption should be strictly regulated, so that the rule could truly play its value, otherwise the interests of creditors would be inevitably damaged.
In China, the number of over-indebted debtors has been increasing, and the “enforcement difficulties” in judicial practice have also taken up a large amount of judicial resources. The personal bankruptcy system can provide an opportunity for honest individuals in serious debt distress to reorganize their debts and maintain social stability. China has not yet enacted its personal bankruptcy law, and since the formal implementation of the Regulations on Personal Bankruptcy of the Shenzhen Special Economic Zone in 2021, many courts across the country have begun to implement pilot personal bankruptcy systems. The unliquidated debts exemption rule, as the core of the personal bankruptcy system, enables honest but unfortunate debtors to obtain adequate protection, their remaining debts may be exempted and their economic regeneration would be promoted. In order to prevent the unliquidated debts exemption rule from being used by dishonest debtors to evade debts, corresponding restrictions shall be attached to the establishment of the rule, such as the debts that cannot be exempted, the circumstances under which the unliquidated debts shall not be exempted, and the setting of a period of investigation. How to balance the protection of the legitimate rights and interests of creditors and the human rights of debtors is crucial to the construction of the unliquidated debts exemption rule. The application of the rule of unliquidated debts exemption should be strictly regulated, so that the rule could truly play its value, otherwise the interests of creditors would be inevitably damaged.