个人破产的文化基础探微——再访成中英教授

A Cultural Probe into Personal Bankruptcy——An Interview with Chungying Cheng

成中英教授认为:一国的法律应该以自己的文化为基础,这并不是说文化一定能够推演出法律,而是说法律至少不要违反文化的精神,不要违反文化的价值,进而言之,社会可以在法律的规范、引导之下,实现文化的优质品格。在社会发展中,诚信是最重要的要求,个人破产应该建立在诚信的基础之上。儒家、法家、兵家都重视诚信。儒家认为,交往要考虑情境,要排除各种不可信的可能的情况和关系,来达到信。"四教"、"五常"和"五伦"中,信均位列末位,但这并不意味着其他的一些价值观念比信具有更高的等级、位序,而是说信是其他价值观念发展的结果。法家讲忠信,因为忠而信,要求忠。君主不能把统治的方式告诉臣民,只能是为政者的秘密,而不是说君主不信臣民。兵家讲诡道,也不是一定就不信,有时是一种无害甚至有利的策略。在一个公开透明的社会,法律将越来越重要。社会秩序要以法律作为基础,政治权威一定要维护法律的尊严,这对诚信建设非常有利。对权力的管制在加强诚信建设方面作用很大,对少数滥用权力者的纵容往往就会导致社会诚信的崩溃。个人破产与中国传统文化中的妥协理念比较契合,但与中国传统文化中的宽恕、拯救、扶弱济贫、隐恶扬善、父债子还等观念及消费观、面子观、尊卑观等有一定的疏离。妥协是为了避免更多的损失与更大的不确定性。宽恕、拯救主要是宗教的范畴,宽恕是一种仁爱的行为,破产免责不是宽恕。个人破产是一种广义的社会救济,而不是一般意义的扶弱济贫。中国应该弱化父债子还的观念,逐渐培育个人的独立意识。

Professor Chungying Cheng holds that laws of a country should be based on its own culture. This is not to say that laws will be definitely deduced from culture but that laws should at least not violate cultural spirits or values. Moreover, under the guidance and regulation of laws, a society can actualize its cultural qualities. Credit, the most important necessity for the development of a society, is supposed to be the basis of personal bankruptcy. Schools of Confucianist, Legalist and Military Strategist all attach great importance to credit. The Confucian believes that, to achieve creditability in communication, people should consider circumstances and exclude all kinds of untrustworthy possibilities and relationship. In traditional Chinese values of ＂Four teachings＂, ＂Five constant virtues＂ and ＂ Five relations＂, credit was ranked the last indicating that credit results from the development of other values instead of implying the priority of other values. Legalist believes that credit is built on faithfulness and therefore they calls for faithfulness. The monarch cannot disclose the governing method to his people, not because he doesn＇t believe in his subjects, but that it＇ s the governor＇s secret. Military Strategist believes in strategy, which does not mean they don＇ t believe in faithfulness. It＇ s a harmless and even beneficial strategy they pursue. In an open and transparent society, laws will become increasingly important. The social order should be based on laws, and the political authority must maintain the dignity of the law, which is very favorable for credibility construction. Controlling on power is very important for credibility construction, while the connivance of a few power abusers will lead to the collapse of social credibility. Personal bankruptcy agrees with the notion of compromise in traditional Chinese culture, but doesn＇t fit in with such notions as forgiveness, salvation, assisting the weak and poor, concealing one＇s wickedness and boast of one＇s goodness, son＇s obligation to pay his father＇s debt, or traditional views of consumption, face-saving and hierarchy. Compromise is to avoid more loss and more uncertainty. Forgiveness and salvation are mainly religious concepts. Forgiveness is a kind of benevolence, while bankruptcy discharge is not forgiveness. Personal bankruptcy is a kind of generalized social relief, rather than the general sense of assisting the weak and the poor. China is expected to weaken the concept that it is the son＇s obligation to pay his father＇s debt, but to gradually cultivate personal independence.