Build an individual to go bankrupt system: Expedite " carry out cannot " of the case exit a mechan

On October 24, 2018, zhou Jiang of dean of top people court is in standing committee of National People's Congress of 13 whole nations was made the 6th times on the conference " solve about people court " it is difficult to carry out " the report of working circumstance " (the following abbreviation " report. " report " after the main performance with be carried out bad in the analysis and cause of formation, offerred countermeasure proposal. Among them, because do not have what belongings can lack legal standard for carrying out a case to discriminate what exit a mechanism and form " clear historical bills due is difficult " make one of 4 it is difficult to carry out kinds of main show, and the individual goes bankrupt the be short ofing of the system is broken also become one of exterior matters with be carried out difficult from this. In the meantime, " report " be aimed at technically still can put forward for carrying out a case without belongings " carry out cannot " the concept of the case, suggest to drive build an individual to go bankrupt system, perfect and active go bankrupt law, expedite " carry out cannot " the case exits method lawfully.

Executive program has wraparound executive program and the branch of individual executive program. Former with going bankrupt the program is a delegate, get the order of countervail for all creditor collective. Latter is a delegate with the civil executive program on the code of civil law, get the order of countervail individually for single loan. Zong Yan of Chenrong of scholar of Taiwan of our country of no less than, "Go bankrupt system, fasten at debtor to most creditor cannot when pay off debt, the total worth with respect to debtor has the program of pay off debt. The belongings limits because of its pay off, reach at debtor total worth, and the department does it to average loan, reason is called wraparound carry out. " generalize executive program as a kind, destroy the effect that produces a system to be able to remove billabong to carry out a case in great quantities perfectly. On one hand, go bankrupt to losing the debtor that fulfills ability completely to start program, carry out because of generalizing start and need not enter carry out individually; On the other hand, fulfill ability, classics to check to entering executive program to be lost completely mediumly do not have belongings to be able to be carried out for what carry out truly person proper motion is entered go bankrupt program, make executive program and go bankrupt program organic join, will carry out individually turn to generalize carry out, the crossing that dredge carries out individually. Accordingly, because go bankrupt,the program has powerful absorption function, can decrease considerably lawsuit and executive case, have the effect that protects creditor's rights fairly.

From our country judicatory practice looks, basis " report " show, there is 43% to belong to about in executive case " carry out cannot " case, these cases belong to the commercial risk that party ought to assume, law hazard, society risk. Additional, the basis is carried out main body type of the person, "Carry out cannot " debt of case place experience can be divided roughly again for legal person debt and natural person debt two kinds. But no matter be legal person debtor or natural person debtor, once its " carry out cannot " , how does corresponding executive program run, also answer to be responded to somewhat in legal level. Current, our country has had business failure way, special rule makes legal entity and the insolvency that other law sets the organization beyond legal entity liquidate. And to the natural person " carry out cannot " case, because the individual goes bankrupt,the be short ofing of the system is broken, cannot quit executive program. Ancient bronze mirror this, be necessary to be besides business failure law, build an individual to go bankrupt system, perfect and active go bankrupt law, expedite " carry out cannot " the case exits method lawfully.

Go bankrupt the system has debtor of creditor of pay off of safeguard debt fairness, protection not only the private law attribute of legitimate rights and interests, and still have regulation of discard of bad of superior of safeguard market economy to develop the effectiveness, social law property that defends the market to move in order adequately. Force of national public right intervenes appropriately and adjust go bankrupt the starting of the program, regard application as the complement of creed, have necessity and proper sex. Watch our country to have instead hold broken join system, " top people court about applicable < code of civil law of People's Republic of China > explain " after providing relevant content the 513rd times to the 516th, came on stage technically again " send about carrying out a case to move go bankrupt the directive opinion that examines a certain number of issues " , in the get through on certain level legal person " carry out cannot " the case moves through the court send enter go bankrupt the passageway of the program. But be based on business failure law the application principle that to going bankrupt the program place that start accepts, the system also goes bankrupt without the individual as a result of our country in the meantime, hold turn broken still bureau be confined to is carried out factitious legal entity, and need the application that with be being carried out person or the any that concern person be executived carry out a case to execute a person written agree to be premise. Accordingly, pledge actually, of our country hold turn broken program still belongs to party to apply for to start go bankrupt program. But " carry out cannot " no matter the debtor that case place involves is legal person or natural person had been had actually go bankrupt condition, ought to enter go bankrupt program, and in practice often do not apply for to go bankrupt as a result of debtor or creditor, cause executive court to be in end the at a stand after all measure.

Ancient bronze mirror this, be necessary to consider to accept principle of powers and authorities of office, build move according to powers and authorities of office send go bankrupt system, gift executive court is being carried out person " carry out cannot " when change executive course directly according to powers and authorities of office to go bankrupt program, go bankrupt in the individual after the system is built direct and applicable. Such, can clear in time not only the part implements old proposal, make " carry out cannot " the case is able to quit executive program, solve it is difficult to carry out in " clear historical bills due is difficult " problem, and still can executive system of li Qing Dynasty and defeat the function that produces a system to locate, reflect break the social law property that produces a system.

According to civil code general principles the 73rd, legal entity by suspend payment, when making bankrupt to liquidate and finish legal person to cancel register lawfully, legal entity is stopped, its are civil main body qualification is eliminated, civil rights ability and civil action competence are eliminated subsequently. But to the natural person, according to thirteenth of civil code general principles, stop from death has when be born, have civil rights capacity, enjoy civil rights lawfully, assume civil obligation. That is to say, differ with legal entity, the natural person although by suspend payment, ability of right of Dan Jimin matter is not eliminated because of this, its are civil main body qualification still exists. Accordingly, on the system framework that goes bankrupt in the individual, need compose proposes the limitative measure that goes bankrupt unlike legal entity.

On one hand, the social credit system that the individual breaks those who produce a system to build hang on to perfect and close form a complete set run measure, with be on guard effectively the individual borrows this ill will to escape useless debt. Go bankrupt in the individual in the system, if rely on follow-up insolvency merely,credit machine makes backup force, but the belongings state that palm of have no way accuses debtor, the effect of whole system will sell at a discount greatly. And verify debtor belongings condition, must have sound social credit system. Perfect social credit system not only information collects a function, still corresponding information exposure shares channel, had this medium of communication, people court inquires the credit information with true and complete debtor OK and conveniently, thereby can more the worth that essence of life grants in time palm to accuse debtor. Only this, debt talent can choose to declare his belongings state according to the facts, once debtor is declared in belongings,go up still " take superabundant land " , in other words, want to return existence debtor not to declare the social space of belongings according to the facts only, debtor may choose to be declared phonily.

On the other hand, the individual goes bankrupt the system needs to build credit to go bankrupt system, execute an individual to go bankrupt directory. Once the natural person of faint countervail debt goes bankrupt, its go up in fame and ought to be affected badly economically. Look from the concerns individual executive process provision of the code of civil law, after people court takes executive step, outside needing except the life of person be executived and family member of its place bring up charge and requisite belong to executive exempt, person be executived still cannot repay of debt, ought to continue to fulfil obligation; Creditor discovers person be executived has other property, can request people court to carry out at any time.

Change character, once be carried out,the person has not fulfill debt entirely, its itself cannot avoid residual liability thoroughly, can retain the income that contented and basic life needs only. Going bankrupt in the program, after legal entity goes bankrupt, because of its qualification of civil main body is eliminated and residual liability is absolved, but after the individual goes bankrupt because its are civil,main body qualification was not eliminated, outside be necessary to draw lessons from region, legislative exemple goes bankrupt to the individual the person absolves residual liability to determine certain term thoroughly (be like 4 to 5 years period) , here deadline implode produces a person to commonly only authority retains the income of contented and basic living expenses. Complete this paragraph of program, go bankrupt person ability avoids the rest liability thoroughly.

In the meantime, be necessary to build an individual to go bankrupt directory, go bankrupt the individual system and system of belongings Shi Ming join, once natural person debtor is in the Shi Ming in civil executive program,do not have belongings, can move according to powers and authorities of office send go bankrupt, executive case is terminative, its bring into an individual to go bankrupt directory, transplant the debtor directory system in be being carried out individually to generalize in carrying out, the clew society attention to its liquidity, reduce rank of its society credence, effective implementation is right go bankrupt the limitation of debtor behavior.

Accordingly, the individual goes bankrupt directory breaks the main component that produces a system as the individual, also be a society at the same time the main component of sincere letter system, through resulting from in the future the individual goes bankrupt the information of the case rises to trade potentially to can be offerred the debtor information that the other side inquires, become a kind already effective to go bankrupt the individual uses the limitative measure that press, also let judicatory information enter social domain to become protective economy to trade at the same time safe strong step. This kind provides interest tuning mechanism of tension extremely, go bankrupt in microcosmic individual system and macroscopical society realize a butt joint between sincere letter system, of itself of system of undoubted meeting enlarge affect effect, develop its to serve to go bankrupt at the individual and social market trades safe two-way effect, make its become a many-sided person that the service goes bankrupt to manage with the society at the individual, advance an individual to go bankrupt credit is supervised, caution and chasten mechanism construction.

Article chapter represents author individual point of view only, do not represent the viewpoint of this Zhang date and view.