It is also worth mentioning that before Zhejiang, Shenzhen also issued the personal bankruptcy regulations of Shenzhen Special Economic Zone (Draft for comments) and experimented with the personal bankruptcy system. In the view of many people, the active exploration in the field of personal bankruptcy system in Shenzhen and Zhejiang will further accelerate the pace of the establishment of Chinas personal bankruptcy system.
Zhejiang formally explores the personal bankruptcy system
According to reports, the work guidelines issued by Zhejiang province put forward three basic principles: compliance according to law, encouragement of exploration and linkage between the government and the court, and explored ways to fully explore the system of personal bankruptcy in the centralized liquidation of personal debts by means of conditional debt relief, honest property declaration, and reasonable determination of necessities of life factor.
For example, it is proposed that the peoples court may exempt from compulsory enforcement measures such as including the list of dishonest persons subjected to execution, detention and fines, etc., and decide to retain the daily necessities of the debtor according to law in combination with the deliberation opinions of the creditors meeting, and give appropriate subsidies for relevant expenses.
Xu Jianxin, vice president of Zhejiang Higher Peoples court, said that the work guideline aims to establish an effective differentiation mechanism to distinguish the debtors who have the ability to perform but refuse to perform the obligations determined by effective legal documents (Lao LAI) and honest but unfortunate debtors. On the basis of compulsory enforcement of the former, it gives the latter a relatively loose system outlet.
Xu Jianxin said that measures such as debtors declaration, accepting creditors inquiry, peoples courts investigation and verification in accordance with its authority and managers investigation and verification are mainly adopted. The debtors good faith is the premise basis for the operation of the system. If the debtor has malicious evasion and other dishonest behaviors, the centralized liquidation procedure will not be started or terminated in time.
For a long time, due to the lack of personal bankruptcy system, once entrepreneurs fail to start a business, they need to bear unlimited debt liability in their own name. They can not get the same bankruptcy protection as enterprises, and can not realize the withdrawal and rebirth from the market. At the same time, the business risk is transferred to individuals and families infinitely, which creates living space for usury, underground banks and other illegal financing channels.
What circumstances can I apply for personal bankruptcy
According to the work guidelines, natural persons who have registered residence in Zhejiang, live in Zhejiang province and participate in social insurance or pay personal income tax in Zhejiang province for three consecutive years can not repay their debts due to maturity, and their assets are not enough to repay all debts or obviously lack the ability to repay debts. They can apply for personal debt centralized cleaning work according to the guidelines.
After entering the bankruptcy proceedings, the work guidelines clearly stipulates that from the date when the peoples court accepts the application for centralized liquidation of personal debts to the date of the end of the procedure or the expiration of the investigation period of the debtors behavior, the debtor shall not have the following consumption behaviors, including choosing business class, first-class cabin, train soft sleeper, second-class or above class shipping space, and g-prefix high-speed EMU when taking transportation Second class seats on passenger trains and first-class seats in other EMUs; consumption in hotels, nightclubs, golf courses and other places above three-star level; children studying in high-cost private schools.
At the same time, the work guidelines also states that the review period for exemption of debtors is five years, that is, if a creditor does not agree to release the debtors remaining debts or takes the establishment of a behavior review period as a condition for agreeing to release the remaining debts, the inspection period of conduct shall be five years after the conclusion of the centralized liquidation procedure for individual debts.
As for the property situation of the debtor, the work guidelines mentioned that the peoples court should timely investigate and verify, and if necessary, organize the parties to conduct a hearing. At the same time, the administrator can conduct a comprehensive investigation and verification of the debtors property by means of inquiry, inquiry and visit, among which the debtors residence and personal property shall be investigated and verified.
Wei Longbin, director of Shanghai prospective law firm, told reporters that according to the work guidelines issued by Zhejiang Provincial Higher Peoples court, there is a breakthrough in asset verification. There are detailed provisions on asset verification in a separate chapter, and 17 specific asset verification methods are listed, which improves the legal enforceability. In addition, the criminal law of malicious evasion and cancellation of debts has been increased The accountability guidelines, extended to managers, have practical significance for regulating the responsibility of the whole process participants.
On the whole, the guidelines issued by Zhejiang are comprehensive, especially in property verification, which provide a reference for the actual situation, and can be said to provide replicable and popularized experience for the whole country. A senior lawyer also told the first financial reporter.
After the release of the work guidelines, it is reported that Zhejiang will carry out the following three aspects of work. On the one hand, it will steadily and orderly promote the centralized clearing up of personal debts in the province, and strengthen the convergence and cooperation between the court enforcement department and the bankruptcy adjudication department in personnel, property declaration, investigation and prosecution, and disposal.
On the other hand, we should promote the improvement of supporting systems, explore the public service functions of relevant government departments in the centralized clearing up of personal debts through the linkage mechanism platform of the government and the courts, such as public administrators, special funds, property information inquiry, credit joint punishment, etc.; moreover, we should actively promote the local legislation of personal bankruptcy.
Exploring the construction of personal bankruptcy system
As a big province of private economy, Zhejiang is the first in the field of personal bankruptcy. The reporter noted that since the end of 2018, the exploration of individual bankruptcy system in Zhejiang Province, represented by Wenzhou, Taizhou and Lishui Suichang, has been gradually carried out, and ice breaking has been achieved in the handling of individual debt centralized clearing cases with the substantive function of personal bankruptcy.
In October 2019, the first case of centralized clearing up personal debts with substantive functions of personal bankruptcy and equivalent procedures was successfully settled in Pingyang court of Wenzhou City. At that time, the judgment that only 32000 yuan of debts of 2.14 million yuan was paid off attracted much attention.
The reporter also learned that, as of September 30, 2020, Zhejiang Province had accepted 237 cases of centralized personal debt settlement, including 137 cases in Taizhou, accounting for more than half; 56 cases in Wenzhou and 41 cases in Lishui. A total of 147 cases involving the Centralized Settlement of personal debts were handled in the province, including 80 cases in Taizhou, 33 cases in Wenzhou and Lishui, and 1 case in Shaoxing.
In terms of debt and settlement, the total amount of personal debt involved in the case was 202.7 million yuan, including 25.73251 million yuan of guaranteed debt and 177 million yuan of ordinary debt, with a total of 33.50349 million yuan of repayment, with an average repayment rate of 16.53%.
Subsequently, on November 9, the Supreme Court also issued the opinions on supporting and protecting Shenzhen to build an advanced demonstration zone of socialism with Chinese characteristics, proposing that Shenzhen should pilot the personal bankruptcy system, build a more perfect market entity entry, reorganization and exit mechanism, and promote the implementation of the trial Individual Bankruptcy Litigation judgment in Guangdong Province and all over the country u3002 And explore the establishment of a Pan Asia Pacific bankruptcy reorganization center.
It can be seen that from Shenzhen to Zhejiang, the scope of exploration of personal bankruptcy system is constantly expanding, and it is worth looking forward to the promotion in the country in the future. However, it should be noted that there are still challenges in the full implementation of the personal bankruptcy system. Wei Longbin told reporters that in terms of judicial cost, there is still no new settlement mechanism. Referring to the actual implementation of the enterprise bankruptcy law, the high judicial cost is still one of the major obstacles to the comprehensive and effective operation of the law.