论我国个人破产失权与复权制度的构建

On the Construction of Loss and Rehabilitation of Rights System in Personal Bankruptcy in China

失权与复权制度是个人破产法律制度的重要组成部分,由于我国个人破产法立法实践起步较晚,因此相关的制度建设仍有待进一步加强。从破产失权与复权制度立法模式选择、实体规则和程序规则三个方面对个人破产失权与复权制度的构建提出符合我国实际的构想。从立法模式的选择上看,裁判失权主义和裁判复权主义立法模式更适合我国现阶段的国情;就实体规则来看,应当同时从破产债务人的身份资格、日常消费行为和个人信贷等几个方面进行整体规划与考量,将失权与复权规则同破产债务人的主观恶性、破产清偿的比例等因素相联系,同时加快我国大陆地区个人诚信体系和社会保障制度的构建;就程序规则而言,应设置相关政府部门,加强复权申请审查和庭外和解等法庭审理前置程序的建设,以最大限度地利用和节约司法资源,同时应平等保障破产债务人和债权人的诉讼权利。

The system of loss and rehabilitation of rights is an important part of the legal system of personal bankruptcy,and due to the late start of the legislative practice of personal bankruptcy laws and regulations in China,the construction of the relevant system still needs to be further strengthened.This paper proposes to approach the problem from three perspectives:selection of the legislative models,substantive rules and procedural rules.The conclusion is that the legislative model of adjudication is more suitable for China’s current national conditions.As far as the substantive rules are concerned,overall planning and consideration should be carried out from several aspects,such as the identity and qualifications of the bankrupt debtors,their daily consumption behaviors and personal credits;when judicial branches deal with such cases,they should consider such factors including the subjective malignant nature of the bankrupts and the proportion of bankruptcy repayment.At the same time,China should accelerate its construction of the personal credit system and social security system.As far as the procedural rules are concerned,relevant government departments should be set up to strengthen the construction of pre-trial procedures for court hearings,such as the review of applications for rehabilitation of rights and out-of-court settlements,so as to maximize the use and conservation of judicial resources,and at the same time to equally protect the litigation rights of bankrupt debtors and creditors.