According to the investigation by the manager (Wenzhou Chengda Accounting Firm), Cai Mou did not evade the debt in the whole execution process. Cai Mou is currently working for another enterprise, Ruian City Machinery Co., Ltd. and holds a 1% equity of the enterprise (2 shareholders of the enterprise, Cai Mous actual capital contribution is 5800 yuan). Cai Mou earns about 4000 yuan a month from the company in office. Hus spouse earns about 4000 yuan a month.
In addition, Cai Mou is suffering from a long-term illness. His children are studying in a university. The family cant afford to pay. Through questioning at the creditorsmeeting, four creditors acknowledge the debtors property status survey results and express their understanding and sympathy for the current difficult situation of his life. Finally, they agree on the final settlement plan: according to the 1.5% liquidation ratio, that is, more than 32,000 yuan, within 18 months. Secondary liquidation.
At the same time, Cai promised that within six years from the date of the completion of the scheme, if the familys annual income exceeds 120,000 yuan, more than 50% of the total will be used to liquidate the debts of all creditors that have not been liquidated.
How does debt liquidation come into being? Why do creditors agree to exemption?
Chen Weiguo said that the individual debt liquidation procedure in this case emphasizes the principle of autonomy of the will, that is, the debt liquidation scheme must be approved by all creditors. If the creditors disagree, the liquidation scheme needs to be revised, adjusted or not passed. So there are no creditors voting against this case, but at the same time it also increases the difficulty of administrators and courts. We should guide as well as possible to reach a balance point. Creditors should recognize the findings of property investigations by courts and administrators, and also have compassion.
According to the Wechat Public No. of Wenzhou Intermediate Court, on August 12, 2019, the Pingyang Court decided to file a case for Cais centralized debt liquidation and appointed Wenzhou Chengda Accounting Firm as the administrator. Following the announcement of the declaration of creditorsrights and the announcement of the first creditors meeting, the Pingyang court held the first creditorsmeeting of Cais debt centralized liquidation case on September 24.
The first creditor meeting of Cais debt centralized liquidation case, all of the figures in this paper are from the Wechat Public Number of Wenzhou Intermediate Court.
It is reported that the administrator system and the creditor meeting system belong to the basic bankruptcy system. In the case of centralized liquidation of personal debts, the administrator will apply to the court for a letter of assistance in the investigation, that is, an investigation order. The administrator verifies the property of the parties by the investigation order, and publishes the declaration announcement of creditors rights and the announcement of the first creditor meeting.
In fact, as the administrator of the case, Wenzhou Chengda Accounting Firm has not only investigated Cais own property, but also his spouse Hu. According to Wenzhou Intermediate Court, the property investigation in this case is quite thorough. It has also made a detailed investigation and statistics on Cais a scrapped motorcycle and sporadic deposits and a small amount of property.
During the trial of this case, after Cai Mou put forward the liquidation plan, the creditor once said that if Cai Mous income increased, should he repay the debt within his ability? On the premise of mutual agreement, Cai promised that within six years from the date of the completion of the scheme, if the familys annual income exceeded 120,000 yuan, more than 50% of the total amount would be used to settle the debts of all creditors that had not been liquidated.
Chen Weiguo said that the trial of the case reflects the principle of fairness and integrity, Cai Mou was also supervised after the case was completed: according to the Pingyang court, Cai Mou has to comply with the requirements of the restraint order, declare the family income and debt repayment to the court before December 30 every year, and also accept the supervision and verification of creditors and all walks of life.
Restriction order issued by Pingyang court to Cai Mou
Wenzhou Intermediate Court: To Activate the Debt Relief System of Existing Financial Institutions
In response to the question of whether there are creditors of financial institutions among the creditors of this case, Chen Weiguo said that in Caimou case, four creditors were not creditors of financial institutions, which made the handling of this case less difficult.
This is also the reason why Wenzhou Intermediate Court pays special attention to the cases of creditors of financial institutions. To promote the establishment of personal bankruptcy system is bound to involve financial creditors. Because of internal management, creditors of financial institutions often express the need for step-by-step report, which makes it difficult to exercise their voting rights immediately at creditorsmeetings.
Chen Weiguo said that although there is no clear legal basis at present, financial institutions have some export systems in terms of debt relief for insured enterprises, especially in dealing with business loans, but they are not well used in dealing with personal debts.
For example, for some business loans with serious losses, some financial institutions stipulate that they can be disposed of at a certain discount (non-performing assets are packaged and transferred). Now we hope that for individuals who undertake joint and several guarantee liability in business loans, there will also be a financial institution to let them enjoy a policy breakthrough in debt relief.
Promoting Personal Debt Processing Procedure will Promote the Construction of Social Credit System
After Cais case, a number of scholars in related fields expressed some concerns in interviews with the media. There is a voice in the academic circles that under the current situation of imperfect integrity system in China, it is very difficult to pilot the centralized liquidation of personal debt.
In this regard, Chen Weiguo said that the establishment of personal bankruptcy system itself is a part of the construction of personal integrity system. Exploring the establishment of a centralized clearance mechanism for personal debts has its important policy significance and legal guidance function, and will promote bankruptcy culture more deeply rooted in the hearts of the people.
Through the construction of mechanism, we should publicize a kind of honest spirit to the society. As long as we are honest operators from beginning to end, even if they fail, there is still a system arrangement, which can give them the chance and possibility of rebirth. We should guide you through the application of law that simple honest consciousness is not enough, and we should also have compliant honest behavior, such as voluntary performance of debts and timely and truthful declaration of wealth. Production, strict enforcement of restriction and elimination provisions, cooperation with court enforcement and so on.
Xu Sung, deputy director of the Bankruptcy Law Research Center of Renmin University of China and vice president and secretary-general of Beijing Bankruptcy Law Society, also expressed similar views on the surging news. Xu Sung said that the establishment of personal bankruptcy system has two relationships with the construction of social integrity system:
First, the establishment and universal implementation of the individual bankruptcy system itself is an important part of the credit system and the construction of an honest and trustworthy society, and the loss of power and restoration of power itself is the scope of the credit system.
Secondly, the establishment and effective implementation of the personal bankruptcy system can accelerate the development and perfection of the system of inverted credit investigation and personal integrity.
Xu Sunshine believes that only by clearing up bad social credit and restoring the credit of market participants in practice can we maintain a good market credit environment, prevent the credit system from being distorted, and prevent the credit system from falling into a dead end that cannot be restored.
On November 7, 2018, the Wenzhou Municipal Party Committee issued Opinions on the Implementation of EstablishingTwo HealthyPioneer Areas in the New Era to Accelerate the High-quality Development of Private Economy, which included Exploring the Reform of Individual Bankruptcy System as a key project for the establishment of Pioneer Areas. Chen Weiguo said that this was a very forward-looking decision, which was common to many entrepreneurs who failed in business but had the ability to Through institutional arrangements, the debtor who is honest but unfortunate will have the chance of Nirvana rebirth.
Regarding why the first case of centralized liquidation of personal debts with substantive functions of personal bankruptcy and equivalent procedures took place in Wenzhou, Chen Weiguo told Pengchao journalists that Wenzhous private economy is more developed and its awareness of commercial risks is stronger. Creditorsattitude towards debtors who are truly incapable of performance is more tolerant than that of other regions in China.
Bankruptcy is the result of investment failure and business failure. It is the same for both debtors and creditors. Wenzhou has a natural soil to promote the formation of personal bankruptcy system. Before we do a debt clearance, there are many cases of reconciliation between the two sides in the implementation process. Chen Weiguo said. Several bankruptcy law practitioners said that unlike individual bankruptcy proceedings, personal debt liquidation is a special enforcement procedure. The reform carried out by Wenzhou court has some elements of personal bankruptcy, but it is not a strict personal bankruptcy procedure, but a centralized liquidation of personal debts implemented within the current legislative framework. Therefore, the judicial organs can only use the slogan with the substantive function of personal bankruptcy and equivalent procedures of individual debt centralized liquidation cases to replace the expression. The trial and error of practice and exploration can provide the basis and accumulate material for the future personal bankruptcy system. The legislation of personal bankruptcy system is of great significance to the legal construction of our country, and provides another way for those debtors who are honest and credible. Source: Peng Mei News Responsible Editor: Zhong Qiming_NF5619
Bankruptcy is the result of investment failure and business failure. It is the same for both debtors and creditors. Wenzhou has a natural soil to promote the formation of personal bankruptcy system. Before we do a debt clearance, there are many cases of reconciliation between the two sides in the implementation process. Chen Weiguo said.
Several bankruptcy law practitioners said that unlike individual bankruptcy proceedings, personal debt liquidation is a special enforcement procedure. The reform carried out by Wenzhou Court has some elements of personal bankruptcy, but this is not a strictly personal bankruptcy procedure, but a centralized liquidation of personal debts implemented within the framework of the current legislation.
Therefore, the judicial organs can only use the slogan with the substantive function of personal bankruptcy and equivalent procedures of individual debt centralized liquidation cases to replace the expression. The trial and error of practice and exploration can provide the basis and accumulate material for the future personal bankruptcy system.
The legislation of personal bankruptcy system is of great significance to the legal construction of our country, and provides another way for those debtors who are honest and credible.