China currently has no national personal bankruptcy law. The Regulations on Personal Bankruptcy of the Shenzhen Special Economic Zone, which came into effect in the Shenzhen region on March 1, 2021, is the first personal bankruptcy legislation in China. In order to standardize the personal bankruptcy procedure, reasonably adjust the rights and obligations of debtors, creditors and other interested parties, promote the economic regeneration of honest debtors, and improve the socialist market economic system, the Regulations on Personal Bankruptcy of Shenzhen Special Economic Zone are formulated in accordance with the basic principles of the laws and administrative regulations, and in conjunction with the actual situation of Shenzhen Special Economic Zone. Legal basis: "shenzhen special economic zone personal bankruptcy regulations" article 1, in order to standardize the personal bankruptcy procedures, reasonable adjustment of the debtor, creditors and other interested parties rights and obligations, and promote the economic regeneration of the debtor in good faith, and improve the socialist market economic system, according to the basic principles of the law, administrative regulations, combined with the actual situation in the shenzhen special economic zone, the enactment of these regulations.
Personal bankruptcy system is the market economic system should be the rescue and exit system, for entrepreneurial failure to regain a new life to provide the rule of law, is conducive to further stimulate the enthusiasm of market players innovation and entrepreneurship, especially in accelerating the construction of scientific and technological power to achieve a high level of scientific and technological self-reliance and self-reliance of the new situation is particularly important and urgent.
For historical reasons, China has not yet established a personal bankruptcy system, but related pilots have been carried out in Guangdong, Jiangsu, Zhejiang, Shandong and other places.2021 On March 1, 2021, the Shenzhen Special Economic Zone Personal Bankruptcy Regulations came into force, becoming the country's first personal bankruptcy legislation. Shenzhen's pioneering exploration and pilot practice in various places have laid an important foundation for national personal bankruptcy legislation and accumulated useful experience.
On May 6, 2022, the Standing Committee of the National People's Congress (NPC) announced its legislative work plan for the year 2022, and the revision of the enterprise bankruptcy law was included in the items to be considered within the year. Is the personal bankruptcy system included in it? If included, how should the personal bankruptcy system be designed? How long will it take for the personal bankruptcy system to move from pilot to nationwide? A moment has become the focus of heated debate in all walks of life.
With these questions, our reporter interviewed Du Wanhua, former deputy ministerial-level full-time member of the Trial Committee of the Supreme People's Court and deputy director of the Advisory Committee of the Supreme People's Court.
Personal bankruptcy system is the basic system of the whole bankruptcy system
Reporter: China's enterprise bankruptcy law was passed in 2006. According to data provided by the National People's Congress (NPC), from 2007 to 2020, China's bankruptcy cases **** more than 59,000 cases, basically fluctuating between two to three thousand cases per year, with less than 2,000 cases in the smallest year. And in a mature market environment, enterprises exiting through bankruptcy procedures should account for at least 10% or even 30%. From this, we can see that the actual effect of China's enterprise bankruptcy system is not too satisfactory. What do you think is the reason for this?
Du Wanhua: This is due to China's bankruptcy system is not complete, the lack of personal bankruptcy as a fundamental system. Without the basic support of the personal bankruptcy system, it is difficult for the enterprise bankruptcy system to achieve good results.
Chinese historical development in thousands of years, the formation of debt repayment system and habits adapted to the phenomenon of bankruptcy, but there is no bankruptcy system in the modern sense. "Selling one's body as a slave," "selling one's son to pay a debt," "paying one's wife to pay a debt," "paying one's father's debt to one's son" The system and concepts such as "a husband's debt is paid by his wife" and "a dead man's debt does not rot" have existed for thousands of years. Such systems are compatible with the natural economy-based mode of production and social patterns that have existed in China for thousands of years. Of course, with the development of society, the non-humanitarian factors such as "selling oneself into slavery", "selling one's son to pay off one's debts" and "paying one's wives to pay off one's debts" that existed during the long period of social development have gradually weakened. Due to the backwardness of the commodity economy, the personal bankruptcy system in the modern sense has never really appeared.
After the reform and opening up, the emergence of the enterprise bankruptcy system in China is not a natural evolution of the personal bankruptcy system, but the result of the state's advancement through legislation in accordance with the needs of the development of China's socialist market economy, which is a kind of leapfrog development.
And from the position of the Western personal bankruptcy system in the bankruptcy system and the role of the economy and society, the emergence of the modern bankruptcy system is initially a personal bankruptcy system. This system is an integral part of the capitalist economic system based on commodity economy. The Queen of England issued the "Anna Act" in 1705, the basic content of which is the "honest and unfortunate" debtor, in the case of its property can not pay the debts due, how to pay the debts and exempt the debtor from the legal provisions of the debt. This system essentially created the bankruptcy and liquidation system in the modern sense. Since the enterprise legal person system had not yet been created at this time, this kind of bankruptcy and liquidation system is essentially a personal bankruptcy system. This personal bankruptcy system not only protects the creditor's right to equal payment of their own claims, but also allows the debtor who would not have been able to fully pay their debts to be released, not only to end the relationship between the creditor and the debt, but also to allow the "honest and unfortunate" debtor to return to the community and return to the market and the opportunity and possibility.
From the beginning of the formation of the capitalist mode of production characterized by the market economy, the bankruptcy system has become an integral part of the capitalist system, which has been gradually improved with the continuous development of the capitalist system. The emergence of the enterprise legal person system, which developed on the basis of the individual (natural person) system, allowed the development of the market entity system based on the commodity economy. Therefore, the individual bankruptcy system is the basic system in the whole bankruptcy system, and the enterprise legal person bankruptcy system is its evolution and change. Without the bankruptcy system's diversification of investment risks and its protection of investment incentives, there would be no modern Western capitalist market economy.
Establishing a personal bankruptcy system requires a change in public attitudes
Reporter: For personal bankruptcy, there is a widespread concern in society that the establishment of a personal bankruptcy system will not become a means for debtors to "evade debts"?
Du Wanhua: With the establishment of a personal bankruptcy system, many people will worry about whether everyone will owe money. But I think that this problem can be said to have a preliminary solution: First, China has established a list of bad faith system, into this list, will face the consequences of not being able to take the high-speed rail, can not take the plane, etc., everywhere restricted, this initiative can be punished most of the people who have the money but intentionally do not pay back; Secondly, with the application of big data technology, as well as the changes in the payment system, the large amount of transactions can be tracked, enough to control the transfer of assets Third, Shenzhen has established a pilot personal bankruptcy information **** enjoyment and publicity mechanism, which can effectively prevent and combat the use of personal bankruptcy procedures to "evade debt" behavior, greatly reducing the cost of information provision, collection and processing.
In fact, the establishment of personal bankruptcy system in our country, especially need to change the public perception. Because our bankruptcy system lacks modern bankruptcy legal culture nourished, so it is very difficult to promote. From the present point of view, many people are lack of modern bankruptcy legal culture consciousness, will be the market subject into bankruptcy as "no ability", "defeat", "harm" and so on. All the entrepreneurs in bankruptcy difficulties feel extremely disgraceful, frustrated, self-loathing, ashamed to see others. Many people do not realize, into bankruptcy in a market economy is a normal economic and social phenomenon, the market subject and natural persons as well as "old age, sickness and death", if it has been "death", then exit the market through bankruptcy and liquidation; if the If it is "sick and wounded", then by applying for bankruptcy protection can get the normal "treatment and rescue".
Of course, we must also realize that, with the establishment of a personal bankruptcy system, there are bound to be unscrupulous debtors who will abuse their rights and try to obtain illegal benefits through the unlawful evasion of personal debts. Therefore, the establishment of civil, administrative and criminal sanctions to combat the behavior of unlawful evasion of personal debt, and establish legal authority becomes very necessary. In particular, the supporting initiatives for criminal crackdowns on fraudulent bankruptcy, debt evasion, concealment of assets, transfer of assets, violent debt collection and other behaviors must be followed up. In addition, there is a need to increase publicity to encourage the exercise of rights under the law, to establish a moral and public opinion atmosphere of shameful violation of the law, so that illegal debt evasion has become a "street rat, everyone shouting". With this series of legal and institutional measures as a safeguard, the use of personal bankruptcy system to illegally evade the phenomenon of personal debt can be completely curbed, there is no need to worry about this possible phenomenon and delay the establishment of personal bankruptcy system.
The establishment of a personal bankruptcy system is an important part of perfecting the socialist market economic system
Reporter: As early as 2019, you wrote an article calling for the establishment of a personal bankruptcy system in China as soon as possible. What are all the benefits of the establishment of the personal bankruptcy system to the development of the economy and society?
Du Wanhua: The establishment of a personal bankruptcy system is an important task to improve China's socialist market economic system and maintain social stability.
First of all, the establishment of a personal bankruptcy system is an important part of perfecting the socialist market economic system. After more than forty years of efforts, our country has basically established a socialist market economic system, which includes the basic socialist economic system, a perfect system of protection of property rights, intellectual property rights protection system, the market transaction protection system, the protection system of the market main body has been basically established. The reason why the system for the protection of market players is called basically completed is that we have established the system for the entry of market players, the system for the equal protection of the activities of market players, etc. However, there are still shortcomings in the system for the exit and relief of market players, the most important of which is that the bankruptcy system is still shortcomings. And the personal bankruptcy system is the shortest of the short boards. If this short board is not made up, the socialist market economy system can not be called perfect, and can not reach maturity.
Secondly, the establishment of personal bankruptcy system is an important measure to protect the investor investment enthusiasm. China now has 150 million market subjects, of which individual businessmen account for a large proportion. If these investment subjects are not to be bankruptcy protection, can not solve a large number of employment problems, production, consumption demand is difficult to pull, the economy is difficult to develop.
Once again, the establishment of personal bankruptcy system, can better safeguard our citizens' right to life and development. Through the personal bankruptcy system, from the social point of view of the interests of the members of society to rebalance, to prevent the polarization of society, especially to prevent the impoverishment of some members of society due to excessive debt, so as to maintain social stability. At the same time, the system can also play a great role in solving the problems related to the husband and wife *** same debt and family debt, and maintaining the stability of marriage and family.
Finally, the establishment of a personal bankruptcy system can be coordinated with the corporate bankruptcy system to create a favorable business environment. For example, through the establishment of personal bankruptcy system to make production and management difficulties in the individual business, can be used to reorganize the way to attract investment, innovative business methods, promote technological progress, optimize the allocation of resources, and promote the individual business, partnership and other natural persons subject to improve the business environment, and promote the healthy development of the economy and society.
The time is ripe for the establishment of a personal bankruptcy system
Reporter: With the implementation of the pilot personal bankruptcy, in recent years, there are constantly on behalf of the members called for the development of personal bankruptcy law. Do you think the time is ripe for the introduction of personal bankruptcy law in China? If mature, how should the legislation of personal bankruptcy law in China be promoted? Is it on the basis of the original enterprise bankruptcy law to increase the content of personal bankruptcy, or to formulate a separate personal bankruptcy law?
Du Wanhua: Under the current environment, the time is ripe for the establishment of personal bankruptcy system. In my personal opinion, to promote the legislation of personal bankruptcy law, we can focus on the following aspects:
One is to utilize the existing legal system to gradually cultivate the personal bankruptcy system. Through the special zone legislation, the initial exploration of the establishment of personal bankruptcy system. Such as Shenzhen, Guangdong, Shanghai Pudong, Fujian Xiamen and other places have been in this attempt. At the same time, the existing laws are fully utilized to explore the cultivation of personal bankruptcy-related systems. Such as Zhejiang Taizhou and Wenzhou, Sichuan, Jiangsu and other places in the centralized liquidation of personal debts, is a positive exploration in this regard.
The second is to speed up the personal bankruptcy system of theoretical research and experience. At present, the research on personal bankruptcy system is springing up all over the country, and there are many various forums and seminars. As far as I know, Beijing, Shanghai, Guangdong, Fujian, Jiangsu, Zhejiang, Shandong, Sichuan, Chongqing and many other places have set up a bankruptcy law research society, vigorously promote the theoretical study of bankruptcy law, summarize the experience of bankruptcy trial work, and do a lot of ideological and theoretical preparation for the innovation and development of the bankruptcy system.
Thirdly, the legal culture of bankruptcy, including the legal concept of personal bankruptcy, is actively publicized. Through a lot of publicity, let more people gradually realize the important role of bankruptcy legal system, including personal bankruptcy system, in economic development and social stability, and gradually realize the limitations of the traditional concept of debt repayment, in order to eliminate the intimidation, fear and resistance to the bankruptcy system, and to enhance the conscientiousness of consciously recognizing, comprehending and applying the bankruptcy system.
Fourth is to actively promote national legislation to establish a personal bankruptcy system. For the legislation of personal bankruptcy legal system, I personally think:
1. The establishment of personal bankruptcy system should be sooner rather than later. We should promote the national legislative process with a sense of urgency to make up for the shortest board of the socialist market economy system, and should not be deterred by the fear of the current difficulties.
2. The legislation at the national level should be coarse rather than fine. As the establishment of China's personal bankruptcy system is to fill the gap, coupled with the lack of practical experience and the stubbornness of traditional concepts, the national level of legislation should be the first to establish the system for the purpose of the first basic rules and procedures can be stipulated, and then later on in accordance with the practice to be supplemented. As for the operational level, it can be resolved by the Supreme People's Court through judicial interpretation and gradually improved in practice.
3. It is not appropriate to legislate the personal bankruptcy law separately. Revision of the current enterprise bankruptcy law, it is recommended that the name of the law be amended to "Chinese people's *** and the bankruptcy law", personal bankruptcy as one of the chapter. In this way, the coordination and connection between the law and the enterprise bankruptcy system can be properly dealt with in a single law, thus reducing the contradictions and conflicts in legislation and facilitating its implementation in practice. At the same time, the establishment of personal bankruptcy system should be accompanied by the establishment of personal credit system. Specifically, that is, in the revision of the bankruptcy law can be made in principle, the specific provisions can be formulated separately.
Reporter: including Shenzhen, the local personal bankruptcy system pilot, for the national legislation provides an important model value. How long do you think it will take for the pilot personal bankruptcy system to finally go nationwide?
Du Wanhua: The direction of the local personal bankruptcy system pilot is generally right, and the promotion of national legislation on personal bankruptcy system is also worthy of recognition. The personal bankruptcy system at the national level has been called for. In the legislative work plan for the year 2022 announced by the Standing Committee of the National People's Congress (NPC), the amendment of the enterprise bankruptcy law has been included in the items to be considered within the year. The Draft Revision of the Enterprise Bankruptcy Law of the People's Republic of China (Draft Revision) drafted by the Legislative Affairs Commission of the NPC Standing Committee, which is currently available to the public, devotes the entire Chapter XIV*** to 24 articles stipulating the "Bankruptcy of Natural Persons", and the name of the law has been revised to the Bankruptcy Law of the People's Republic of China (Draft Revision). Therefore, the national personal bankruptcy system will also be followed as soon as possible, which is the need to make up for the short board of the socialist market economy system. But the entire system of perfection and maturity, I believe there is still a long way to go.