论我国个人破产庭外程序的体系构建

On the Construction of Out-of-court Procedure System of Personal Bankruptcy in China

个人破产庭外程序既是破产案件繁简分流的内在要求,也是个人破产在我国顺利推行的有效途径,同时体现了破产程序的效率追求。我国司法外纠纷解决机制的发展及个人债务清理与个人破产的试点,为个人破产庭外程序的构建提供现实基础。破产和解制度存在独特价值且与庭外程序中的协商调解存在实质差异,二者应并存,共同服务于破产程序的进行。相较于选择模式,前置模式的庭外程序能够最大程度发挥庭外程序的作用,且与我国个人破产立法理念相符,应为现阶段的最佳选择。我国个人破产庭外程序应以调解为基础,融入信用咨询,并设立行政主导的破产事务管理部门,负责程序的运行。庭外程序中债务清偿协议的达成,需全体债权人一致同意,可赋予债务清偿协议以强制执行力,同时也应设置完善的监督措施。在债务清偿协议无法达成或执行时,应及时采取措施,将案件转入庭内程序,使庭外程序能够与庭内程序顺畅衔接。

The out-of-court procedure of personal bankruptcy can settle debts out of court and collaborate with the in-court procedure of personal bankruptcy to realize the reasonable allocation of judicial resources and maximize social efficiency.In addition,the out-of-court procedure of personal bankruptcy,which is in line with Chinese social traditions,can be accepted by the public easily and can promote the transformation of people’s thoughts about debt repayment.It is an effective way for personal bankruptcy to be successfully implemented in China.Moreover,the out-of-court procedure of personal bankruptcy reflects the value of the efficiency of bankruptcy law.It can not only solve problems out of court to reduce the expense of resolving bankruptcy cases,but also provide assistance for the in-court procedure and improve its efficiency.The development of alternative dispute resolution and the attempts of personal debt liquidation and personal bankruptcy provide the basis for the construction of out-of-court procedure of personal bankruptcy in China.The bankruptcy reconciliation system has its advantages and exerts a crucial role in the personal bankruptcy procedure.It differs from the mediation in the out-of-court procedure.Therefore,the bankruptcy reconciliation procedure can co-exist with the out-of-court procedure to serve the processing of personal bankruptcy cases.A type of out-of-court procedure,which is considered the pre-requisite for every individual to file a bankruptcy petition,can maximize the advantages of the out-of-court procedure in ensuring the reasonable allocation of judicial resources and the smooth implementation of the personal bankruptcy system.It can adapt to the current social condition in China that the credit mechanism has not yet fully developed and the public find it difficult to accept personal bankruptcy.And this type of out-of-court procedure of personal bankruptcy is in line with the tendency of personal bankruptcy legislation worldwide.The advantage of mediation is that a third party in it can offer basic materials for the negotiation among the creditors and the debtors and provide assistance for the subsequent judicial proceedings.Although credit counselling also has its advantages,the basis for constructing an independent credit counselling system does not exist in China.Therefore,China’s out-of-court procedure of personal bankruptcy should adopt a comprehensive debt mediation model which integrates mediation and credit counselling.Social institutions may lack the incentive to resolve disputes out of court due to the possible disproportion between expenditures and returns.In contrast,administrative institutions have advantages in investigating debtors’property and liabilities,connecting with the in-court procedure of personal bankruptcy and supervising the execution of debt liquidation agreements.Therefore,an administrative institution in charge of the operation of the out-of-court procedure of personal bankruptcy should be established in China.The achievement of a debt liquidation agreement requires the unanimous consent of all creditors in the out-of-court procedure of personal bankruptcy.To ensure the enforcement of the debt liquidation agreement,compulsory enforcement force should be given to debt liquidation agreements and perfect supervision measures should be set up.When a debt liquidation agreement cannot be reached or enforced,the case should be brought to in-court procedure timely.