The personal bankruptcy system reserves development space for those “honest and unfortunate” debtors to get rid of the personal debt crisis. This not only gives the debtor an opportunity to start again, but also helps to mobilize the debtor’s enthusiasm to re-enter socio-economic activities and create social wealth.
Wen Xiaokang · China xiaokang.com reporter Liu Jianhua
“Thanks to the personal bankruptcy regulations, I have the opportunity to get economic rebirth. Policies and laws are not ruthless, but really warm…” Hu was a little excited when he said these words.
On November 8, the Shenzhen intermediate people’s court ruled on the first natural person bankruptcy liquidation case since the implementation of the regulations of Shenzhen Special Economic Zone on individual bankruptcy, determined that the debtor’s existing property was insufficient to pay off all debts, met the conditions for declaring bankruptcy, and declared him bankrupt. After the three-year exemption investigation period, if she can pass the review of the court, she can be exempted from her remaining debts.
The news of China’s first “bankrupt” in the legal sense has aroused widespread concern from all walks of life. What kind of people can file for bankruptcy? Do you still need to pay off debts after personal bankruptcy? How to protect the rights and interests of creditors? A series of issues triggered a lot of discussion.
Li Shuguang, director of the bankruptcy law and enterprise reorganization research center of China University of political science and law, said that Shenzhen is the first city in China to conduct a pilot of personal bankruptcy legislation. Next, the judicial procedure should be further improved. It is best to incorporate the personal bankruptcy system into the bankruptcy law and promote it by a national law. Yang Chaonan, a doctoral student jointly trained by Jinan University and Berlin Free University and a leading foreign lawyer in Guangdong Province, believes that the establishment of the personal bankruptcy system is of great significance for building a complete modern bankruptcy system and market exit system, and creating a stable, fair, transparent and predictable international first-class legal business environment. However, in the early stage of its establishment, there are still some difficulties in the implementation of the personal bankruptcy system.
Who is “honest and unfortunate”
For Hu, this civil ruling is the best news in recent years. On November 8, Hu wore a black hat, covered his face with a mask and signed the court’s ruling. “I used to be far away from the law and was a little afraid of it. But suddenly I felt that behind its majesty, there was warmth. It was a relief for me and my children.” She said these words with her back to the media camera.
Hu is a teacher and once founded a company specializing in counseling business. In 2016, the company had to close down due to the closure of the mall where the business site was located. According to media reports, the 3000 square meter site spent 2 million yuan on decoration, with a fixed expenditure of about 200000 yuan per month. Hu, who lacks business experience, has been losing money.
According to the civil ruling of Shenzhen intermediate people’s court, the closure of the company has put Hu on more than 4.8 million yuan of debt, including more than 2.75 million yuan borrowed by two commercial banks, more than 300000 yuan borrowed by credit cards, more than 900000 yuan borrowed by friends, 500000 yuan of operating loans, interest and liquidated damages. The above borrowings are used for the operation of the company. Due to the small scale of the company, it is impossible to apply for loans in the name of the company. Hu sold her only house in 2018, and all the house sales money of 2.6 million yuan was used to repay the debt. Later, she insisted on repaying the loan, but she still owes more than 1 million yuan so far.
Hu, who has always expected to make a comeback with “education and training”, gave up completely under this year’s “double reduction” policy.
On March 1 this year, the regulations of Shenzhen Special Economic Zone on personal bankruptcy came into force. On June 9, Hu submitted an application for personal bankruptcy liquidation to the Shenzhen intermediate people’s court. In order to prove her bankruptcy, property status and other facts, she submitted a bankruptcy application, explanation of the cause and process of bankruptcy, property report, list of creditor’s rights and debts, etc.
The Shenzhen intermediate people’s court held that Hu’s liabilities were caused by production and operation losses, his assets were insufficient to pay off all his debts, and he complied with the relevant obligations stipulated in the personal bankruptcy regulations in the bankruptcy proceedings, which met the conditions for declaring bankruptcy. In accordance with the provisions of articles 2, 84, 95 and 96 of the regulations on individual bankruptcy of Shenzhen Special Economic Zone, the debtor Hu was declared bankrupt and entered a three-year exemption period.
As the first bankrupt individual in China, Hu is also called “honest and unfortunate” by the media. It is the law that gives her economic rebirth. Li Shuguang said that according to the regulations on personal bankruptcy of Shenzhen Special Economic Zone, after passing the exemption inspection period, Hu can avoid the remaining debt. During the inspection period, certain restrictions will be imposed on her personal consumption behavior, cognitive qualification and property distribution. For example, you can’t go to high-end places to consume, and you can’t buy houses and cars; You can fly, but not first class; You can take high-speed rail, but you can’t take a first-class seat; No enterprises, no investment, etc. After all kinds of restrictions, all debts will be exempted in three to five years, so that the “bankrupt” has a chance to “make a comeback”.
How to judge that the debtor is really an “honest and unfortunate” debtor? Cao Qixuan, President of Shenzhen bankruptcy court of Shenzhen intermediate people’s court, mentioned in an interview with the media that in this case, on the one hand, it is necessary to reflect the relief for the “honest and unfortunate” debtor and protect the basic life and rights of the debtor and the people she supports; On the other hand, we should prevent malicious bankruptcy. In this case, the whole procedure is very strict. After the liquidation of the court, the investigation of the administrator and the supervision of the creditor, the debtor believes that she meets the standard of “honest and unfortunate” debtor. The debtor has also fulfilled its obligations under the personal bankruptcy regulations throughout the bankruptcy proceedings, which is in line with the conditions for declaring bankruptcy.
Guarantee to creditors
Since the implementation of the regulations of Shenzhen Special Economic Zone on personal bankruptcy on March 1, more than 800 people have applied for personal bankruptcy in Shenzhen.
So the key question is, will the interests of creditors be affected after an individual applies for bankruptcy?
In this regard, Li Shuguang said that what is commonly referred to as “Lao Lai” now refers to people who can’t afford to pay back. At present, there are about 17 million people in China. If subdivided, some of them belong to “honest and unfortunate” people, and they are honest people worthy of sympathy. They are unable to repay their debts for various reasons. They can not simply regard these people as those who want to evade their debts and want to cheat and go bankrupt. Personal bankruptcy does not mean malicious debt evasion. If these people apply for personal bankruptcy, they have to be reviewed by the court. This review is very strict and the threshold is very high, including all assets and account information of the debtor. If the “Laolai” hides or transfers assets, he cannot apply for personal bankruptcy, or his bankruptcy application will be rejected.
Before the implementation of the personal bankruptcy system, if an individual’s debt enters the court execution procedure, as long as the person subjected to execution has enforceable property, the court can enforce it indefinitely until the natural person dies. After the implementation of the personal bankruptcy system, the remaining debts will be cleared after the expiration of the statutory investigation, which will certainly affect the interests of creditors. The relationship between creditor’s rights and debt is mainly about money, but some things are more important than money, such as people’s life and social security. Therefore, in a society with a sound legal system, debt is not allowed to kill people. From this perspective, exempting the bankrupt’s remaining debt according to law is not only a realistic choice, but also reflects the due temperature of the law.
Many people will question whether the personal bankruptcy system will bring malicious liabilities and become a “haven for Laolai”. In this regard, Yang Chaonan told reporters of Xiaokang magazine and China xiaokang.com that the personal bankruptcy system has set strict restrictions. Therefore, the debtors who can enter the bankruptcy liquidation, reorganization or reconciliation procedures are not those who “don’t pay back the money”, but those who are “honest and unfortunate”. Only they can pass the review of the court and realize personal bankruptcy. Debtors who intend to evade their debts, or debtors who make false statements or provide false certificates, will be strictly excluded from the personal bankruptcy system. In addition, in terms of preventing the debtor from transferring assets maliciously, if the debtor conceals, transfers, improperly disposes of property or fictitious debts in order to avoid debts, the court may determine that his behavior is invalid.
In terms of the protection of creditors’ rights, the personal bankruptcy system provides creditors with institutional guarantees such as applying for cancellation of debt relief and confirming the invalidity of acts. By recovering the property transferred or hidden by the debtor before bankruptcy, or revoking the debtor’s individual prepayment, the interests of creditors can be protected. At the stage when the bankruptcy application is accepted but has not been declared bankrupt, if the debtor does not meet the application conditions, or maliciously transfers property to evade debts, the creditor may apply to the court to reject or reject the bankruptcy application. If the debtor pays off individual creditors within six months before the bankruptcy application is filed, the administrator has the right to request the court to cancel it. During the debtor’s investigation, if it is found that the debtor has obtained the cancellation of the outstanding debt through fraudulent means, the creditor may apply to the court for cancellation of the ruling on the cancellation of the outstanding debt and allow the debtor to continue to perform the debt. During the execution of the reorganization plan, if the debtor does not or cannot execute the reorganization plan, or the debtor has fraud, the creditor may apply to the court to terminate the execution of the reorganization plan and declare the debtor bankrupt.
“The above measures are to ensure the rights and interests of creditors to the greatest extent.” Yang Chaonan said that the rights and interests of creditors should not be damaged indefinitely because of the personal bankruptcy system.
The judicial procedure needs to be further improved
Hu became the first “bankrupt” in the legal sense in China, which triggered a public discussion on whether the personal bankruptcy system is not conducive to the protection of creditors’ rights and interests and whether it will become a means to avoid debt.
Yang Chaonan said that since ancient times, Chinese people have believed that it is natural to “repay debts” and “repay father’s debts and son’s debts”. The personal bankruptcy system exempts individual debts to a certain extent through legal procedures. However, many people will think that this is inconsistent with the traditional concept of “debt repayment”, which is easy to breed “Laolai” and difficult to obtain the psychological recognition of the public. This is the conflict between personal bankruptcy system and social concept in the process of landing. In this regard, we also need to further understand the significance of personal bankruptcy system in modern society.
The supporting system corresponding to the individual bankruptcy system has not been perfect. For example, the joint publicity system of individual bankruptcy status needs to be improved and strengthened, which plays an important role in the implementation of individual bankruptcy system. It can not only realize multi-channel disclosure of dishonest behavior, form effective supervision in all aspects, prevent creditors from malicious debt evasion, but also effectively guide debtors to be honest and trustworthy. However, in the early stage of its establishment, there are still some difficulties in the implementation of the personal bankruptcy system.
Xu Yangguang, a professor at the school of law of Renmin University of China, said that if a person is in trouble and has no way of legal relief, he may not get out all his life and have no way to make money and pay off his debts all his life.
As for whether the personal bankruptcy system will become a means to evade debts, the regulations on personal bankruptcy of Shenzhen Special Economic Zone clearly stipulates the legal liability of the debtor. In case of refusal to cooperate with the investigation, refuse to answer inquiries, or refuse to submit relevant materials; Providing false or altered materials, making false statements or misleading statements; Deliberately concealing, transferring, damaging or improperly disposing of property or property rights and interests, or other improper reduction of property value; Fictitious debts, or admitting untrue debts and other acts that hinder bankruptcy proceedings shall be admonished, summoned, fined or detained by the court according to law; If a crime is constituted, criminal responsibility shall be investigated according to law.
In addition, the regulations on personal bankruptcy of Shenzhen Special Economic Zone also stipulates that, in addition to the information not disclosed according to law, the bankruptcy administration department shall timely register and disclose the bankruptcy application, behavior restriction decision, property declaration, creditor’s right declaration, distribution plan, exemption investigation and other relevant information for relevant units and individuals to inquire according to law.
“The establishment of the personal bankruptcy system is of great significance for building a complete modern bankruptcy system and market exit system, and creating a stable, fair, transparent and predictable world-class legal business environment.” Yang Chaonan said that the personal bankruptcy system has a positive impact on social development and stability. At the micro level, the personal bankruptcy system reserves development space for those “honest and unfortunate” debtors to get rid of the personal debt crisis. This not only gives the debtor an opportunity to start again, but also helps to mobilize the debtor’s enthusiasm to re-enter socio-economic activities and create social wealth. At the macro level, the personal bankruptcy system plays an important role in ensuring economic operation and market credit in the market economy, and has the function of ensuring social stability. In modern social production, the existence of risk is objective and inevitable. To some extent, the personal bankruptcy system is to let creditors share the reasonable risk borne by “honest and unfortunate” debtors, and distribute this social risk burden more reasonably, so as to ensure the stable operation of society.
(China xiaokang.com)
