个人破产制度的中国式建构

The Chinese Establishment of the Personal Bankruptcy System

随着市场经济的快速发展,市场在为个人带来诸多机遇和丰厚回报的同时,基于市场认识不足、信息不对称、投资风险等原因,个人面临破产困境。作为回应,大多数国家建立了个人破产制度,最大限度实现了债权人与债务人的利益衡平。遗憾的是,我国尚未确立个人破产制度,但放眼我国相关民商事立法、司法解释及政策措施,个人破产制度却已初见端倪,值得进一步推敲和深入研究。建议遵循"渐进式"原则推行个人破产制度,建构个人破产申请条件、程序及处罚机制,授予债务人许可免责权,赋予债务人享有自有财产权,创立失权与复权制度,促进社会和谐、稳定发展。

With the rapid development of the market economy, when the market brings a lot of opportunities and huge return for individuals, individuals are faced with the predicament of bank- ruptcy because of lacking of recognizing towards the market, the asymmetry of the information, the risk in investment and other reasons. In response, most countries have established personal bank- ruptcy system in order to maximize to realize the equity of the interests between the creditor and the debtor. Unfortunately, China has not set up personal bankruptcy system yet, but as we look through our civil and commercial legislation, judicial interpretations and policies and measures cencerned, personal bankruptcy system has begun to take shape, which is worthy of analyzing further and re- searching deeply. It suggests that our country should observe the principle of ＂gradually-advanced way＂ to popularize the personal bankruptcy system , set the applying conditions, the procedures and the punishing mechanism, grant the debtor the right of exemption through permission , make the debtor enjoy the right of being possessed of private property independently and create the losing right system and the rehabilitating right system, which can promote the society to develop harmoniously and stably.