Prior to that, seven laws and regulations, including the personal bankruptcy regulations of Shenzhen Special Economic Zone (hereinafter referred to as the personal bankruptcy regulations), were adopted by the 44th meeting of the Standing Committee of the sixth Shenzhen Municipal Peoples Congress on August 26, and will come into force on March 1, 2021. On August 28, the law working committee of the Standing Committee of the Shenzhen Municipal Peoples Congress interpreted the relevant situations of seven laws and regulations.
Shenzhen has designed a series of systems to prevent debtors from escaping debts maliciously
It is of great significance to build a complete modern bankruptcy system and market exit system, and to create a stable, fair, transparent and predictable international first-class legal business environment.
Many people are worried that the implementation of the personal bankruptcy regulations of Shenzhen Special Economic Zone (hereinafter referred to as the regulations) will make Shenzhen a paradise for malicious debt evaders? Liu Shuguang, director of the law working committee of the Shenzhen Municipal Peoples Congress, said at a law interpretation meeting on August 28 that only honest and trustworthy debtors can be protected by the personal bankruptcy system when they are unfortunately in debt crisis. This is the basic value orientation of personal bankruptcy legislation. In order to avoid the debtors malicious evasion of debt, the regulations have designed a series of systems, such as finding that the bankruptcy applicant evades the debt maliciously, the court will not accept the bankruptcy application
1u3001 Establish personal bankruptcy registration system, timely and accurately register major personal bankruptcy events, and disclose personal bankruptcy related information to the society according to law;
3u3001 When the peoples court has accepted the bill and has not declared bankruptcy, if it finds that the applicant has the above-mentioned circumstances, the peoples court shall rule to reject the bankruptcy application;
4u3001 Creditors or other interested parties may apply to the peoples court for cancellation of the provisions on the discharge of outstanding debts if they find that the debtor has obtained the discharge of outstanding debts by fraudulent means at any time;
5u3001 If a debtor violates the provisions of the regulations and has seven acts as prescribed in Article 167, the peoples court shall admonish, compel him to be summoned, fined or stay in accordance with the law. If a crime is constituted, criminal responsibility shall be investigated according to law.
The official website of the Standing Committee of the Shenzhen Municipal Peoples Congress announced the full text of the regulations on personal bankruptcy of Shenzhen Special Economic Zone. The picture is a screenshot of the page.
On the system of lifelong accountability and the calculation method of exempt property
Liu Shuguang further explained that the Regulations stipulate that transactions two years before the application for personal bankruptcy are invalid, and transactions such as property transfer two years ahead of the date of filing the application can be revoked. The act of clearing up debts to immediate family members within two years is invalid; the last hurdle is that as long as there is malicious evasion of debt at any time, you can ask to cancel the previous ruling of the court on debt exemption, that is, the lifelong accountability system, which is the strictest malicious debt evasion accountability system in the world.
The exempt property is the property reserved for the debtor and his dependants to protect their basic life and rights. Shenzhens Regulations adopt the mode of adding the maximum amount of property categories. The total accumulated value of the exempted property shall not exceed 200000, that is, the maximum amount of RMB 200000 will be retained, including the basic necessities for the debtor and his family in the absence of real estate, basic personal consumption, family support, medical expenses for childrens schooling and medical treatment, and rental expenses. According to basic accounting, 200000 is enough for a family of three to live for one year.
All but exempt property should be taken out to pay off debts. High consumption is not allowed within three years, and directors, supervisors and senior managers of listed companies, unlisted public companies and financial institutions are not allowed; when borrowing more than 1000 yuan or applying for an equal amount of credit line, the borrower or credit provider shall declare his bankruptcy status.
Zhu Yicong, a lawyer from Beijing Yingke (Shenzhen) law firm, believes that the individual bankruptcy system can solve the problem of difficult enforcement and make up for the deficiency of civil litigation. To a great extent, Chinas civil litigation needs to be enforced by the court, and the difficulty of enforcement is a difficult problem that has plagued our peoples courts for a long time. If the creditor applies for personal bankruptcy due to the debtors insolvency, the bankruptcy liquidation can be carried out through judicial procedure, and the reconciliation or reorganization can be carried out, which can more effectively protect the interests of creditors.
Yu faqun, a member of the real estate lawyer team of Beijing Yingke (Shenzhen) law firm and Xinrong (Shenzhen) real estate lawyer team, has basically the same views as Zhu Yicong and Chen Bangyi. He believes that the personal bankruptcy system has given Shenzhens economic development a shot in the arm, giving entrepreneurs a chance to make a comeback; at the same time, the personal bankruptcy system is not the umbrella of Laolai. According to the regulations, the application of personal bankruptcy system needs to meet strict conditions, and the remaining debt can be released only after three years of strict behavior restriction. Therefore, this system is only aimed at honest and unfortunate debtors, and is not the object to be protected by this system for those Laolai who want to use the personal bankruptcy system to escape.
How to implement the personal bankruptcy regulations and how to link up with the marriage law deserve further discussion
Liu Yajuan, a lawyer from Beijing Yingke (Shenzhen) law firm, mentioned that it would be a big problem how the personal bankruptcy regulations are linked with the marriage law. Since China is a husband and wife joint property system, after the husband and wife start bankruptcy proceedings, creditors may still need to determine whether the debts involved are joint debts of husband and wife through litigation. If it belongs to one partys personal debt, it is necessary to separate out the part that should belong to the spouse before disposing of the bankrupts property. After the start of the bankruptcy proceedings, it is also necessary to clarify whether the husband and wife are still the joint property system Lawyer Liu Yajuan analyzed that if the common property system is still adopted, then the spouse who has not applied for bankruptcy can still purchase assets, and the limitation of the bankrupts rights is likely to be in vain. There is no corresponding provision in our marriage law to support the separate property system except the negotiation between husband and wife.
Yan Yudan, director of Guangdong Danzhu law firm, said in an interview with reporters that the most essential significance of the personal bankruptcy system is relief. The establishment of the system can prevent vicious events that infringe on personal rights and interests (such as violent collection by professional debt collectors) in debt recovery, and effectively reallocate resources. However, the new legal issues arising from the implementation of the system still need to be dealt with by the Shenzhen court in practice. For example, if a person goes bankrupt in Shenzhen, how to identify his debt in other areas where there is no individual bankruptcy system.
Law popularization is the key to let the personal bankruptcy system go deep into the hearts of the people. (pictures of Shenzhen News Network)
Huang Zhiming, director of Guangdong Juntian law firm, believes that the promulgation of the personal bankruptcy regulations is a major legislative breakthrough and a reform in the economic field. It is not ruled out that many ordinary people are worried about whether the promulgation of the regulations will become a magic weapon for Laolai to avoid debts. Therefore, the publicity of law popularization after the promulgation of the regulations is also the next important link. By popularizing the law, we can eliminate misunderstandings and misunderstandings, and let the public understand that the most essential meaning of the personal bankruptcy system is relief, which is aimed at the economic regeneration of unfortunate and honest individuals. It is a system that all countries in modern civilized society have.
Xu Yibin, a member of Guangdong Zhuojian law firm and a member of yuewan lawyers Union, believes that the promulgation of the personal bankruptcy regulations will improve the legal system of bankruptcy in China, protect the honest and unfortunate people who participate in social and economic activities, and turn Chinas bankruptcy legal system from half bankruptcy law to complete bankruptcy law, and also contribute to the stability of social and economic order and housing The stability of the credit market plays a role of legal protection, which is ready for the design of personal bankruptcy system at the national level in the future.