个人破产何以可能:溯源、证立与展望

Why Is Personal Bankruptcy Possible:Traceability,Evidence and Prospect

破产并非企业专属,破产法不能回避“不幸”个人的债务清理之救济。从强调惩治到凸显保护,个人破产在经济演进中对债务人愈发友好。实际上,个人破产应是企业等团体破产的基石,是国家经济转型调控的有力工具。我国仅有《企业破产法》,个人破产未被涵括,现有的参与分配、失信惩戒及债务临时核销等替代机制无法从根源上化解债务清理之困局。而消费金融膨胀扩张及民事主体泛商化的新情势更迫切需要个人破产的引入护航。现实中,信用体系的建设程度或财产登记的开展状况不应成为个人破产落地之障碍,适恰的制度设计将有效消除个人破产被滥用的忧虑。从结构要素出发,我国个人破产制度应围绕主体范围、财产限定和机制衡平等内容进行重点架构。

Bankruptcy is not exclusive to the business, and the protection of unfortunate individuals' debt relief can't be avoided. From emphasizing punishment to highlighting protection, personal bankruptcy is becoming more friendly to debtors in economic evolution. In fact, personal bankruptcy should be the cornerstone of bankruptcy of group bankruptcy ( e. g. enterprise bankruptcy), which can be used as an effective tool in the regulation of national economic transformation. In China, personal bankruptcy is not covered in “Enterprise Bankruptcy Law ”. The existing alternative mechanisms such as participation distribution, disciplinary punishment and temporary write-off of debts cannot resolve the dilemma of debt liquidation from its root. The expansion of consumer finance and pan-commercialization of civil entities are in great need of insurance of personal bankruptcy. In reality, the degree of construction of the credit system and the development of property registration should not become an obstacle to the personal bankruptcy. The proper system design will effectively eliminate the worries of personal bankruptcy abuse. The personal bankruptcy system should focus on the scope of subject, property restrictions and mechanism balance based on the structural elements.