When the news came out, it attracted attention from all walks of life. Among them, some people interpret it as beneficial to "the untrustworthy" and "all borrowers are uncles", while others think that the system will "focus on protecting business owners and discriminate against ordinary people"; In addition, some media reported that the personal bankruptcy system will be piloted in some areas in the second half of the year.
In this regard, on July 18, 265438+20th Century Business Herald interviewed two authoritative figures who participated in the demonstration of the reform plan-Chi He, senior partner of Tiantong Law Firm, and Han, research director of Jianxin Financial Assets Investment Co., Ltd., introduced the background of the personal bankruptcy system and answered related questions.
Chi said that the personal bankruptcy system should protect non-malicious and untrustworthy debtors, and the "untrustworthy executor" will be restricted by measures including restricting high consumption, restricting withdrawal, bankruptcy protection for five years or even longer, and criminal responsibility system; With the maturity of the domestic personal property registration system and credit information system, personal bankruptcy will be guaranteed by the system, and the personal bankruptcy system will in turn promote the further improvement of the former.
Han said that some people think that the personal bankruptcy system focuses on protecting business owners and discriminating against ordinary people. "The above explanation can be said to be extremely irresponsible", because "whether business owners or ordinary individuals apply for bankruptcy protection, it does not mean that they can easily evade debts."
Regarding the rumors of the pilot, Han said that the "Reform Plan" clearly stated that "studying and establishing an individual bankruptcy system" must be "studied" first, and it is far from being implemented.
There are strict precautions against "Lao Lai"
Personal bankruptcy refers to the legal norm that when a natural person as a debtor can't pay off due debts, the court declares him bankrupt according to law, liquidates and distributes his property or adjusts his debts, exempts his debts and determines the rights and obligations of the parties in the bankruptcy process. At present, most countries have implemented the personal bankruptcy system.
From the international experience, the introduction of personal bankruptcy system is mainly to protect debtors who have broken their promises due to non-subjective factors and give them a chance to be reborn; As for "Lao Lai", the personal bankruptcy protection system will be bound by a series of hoops.
The "Reform Plan" proposes to study and establish an individual bankruptcy system, which has aroused market concern. The core point of public concern is whether the introduction of the system will condone "Lao Lai". First of all, how to legally define whether the debtor is a "lazy person"?
Chi: Lao Lai is a common name. The legal distinction mainly depends on whether it has the property responsible for paying debts and whether it has the ability to pay debts. If he has the property to pay off debts and refuses to perform or evade the obligation to pay off debts, the debtor should belong to Lao Lai; But if he really has no executable property and is insolvent, he can't be called "Lao Lai".
Under the current legal system, why can't we protect the latter, that is, these honest debtors?
Late: In the civil execution procedure, the law does not distinguish between these two types of people. As long as the debtor fails to perform the effective judgment documents on time, according to the existing laws and the provisions of the people's court on execution procedures, the person subjected to execution will be included in the list of untrustworthy people, and the court will not consider the reasons for not performing the effective legal documents and whether there is property. It can be said that the execution procedure does not examine the reasons and process of the debtor's inability to pay off debts, but only the results.
With the personal bankruptcy system in the future, what kind of protection will honest debtors get after distinguishing debtors?
Pool: Personal bankruptcy system has two very important measures to protect debtors.
The first system is the free property system. The system of free property allows the debtor to keep the property necessary for life, such as household necessities, in the process of paying off debts, which can be included in the scope of free property. As for the scope of free property, it is determined by the legislation of various countries. The scope of free property is determined by the personal bankruptcy law, which stipulates the property necessary for the debtor's survival. This can protect the debtor's right to life and ensure that the debtor will not be desperate.
The second is the exemption system. The core of the exemption system is that the debtor can be exempted from the debt liability that he failed to perform after fulfilling certain legal obligations through institutional arrangements, that is, there is no need to repay. In this way, he can avoid lifelong debts and have the opportunity to be exempted from debts under legal conditions, thus giving him the opportunity to start a business.
In other words, the free property system protects the debtor's right to exist; The exemption system protects the debtor's right to development.
Whether entrepreneurs or consumers, there are many reasons for debt, which are the result of various comprehensive factors, not entirely the reason for the debtor's own extravagance and waste. Therefore, we should be tolerant of entrepreneurs who fail to start a business, consumers who borrow too much and other natural persons who need personal bankruptcy law protection.
What preventive measures will the personal bankruptcy system take to evade debts?
Late: the personal bankruptcy system has clear countermeasures to evade debts.
First, at present, the court's execution procedure "restricts high consumption and restricts exit", that is, the debtor is not allowed to make high consumption or leave the country before fulfilling his legal obligations. These measures are actually restrictive measures in the personal bankruptcy system, and their implementation procedures have been used for reference in the absence of personal bankruptcy law.
Second, in the personal bankruptcy system, there is a "bankruptcy crime system" to further limit malicious evasion of debts. If the debtor is found to have seriously evaded the debt in this process, he will be investigated for criminal responsibility, and the court will also revoke the previous debt exemption.
Personal bankruptcy has an exemption period. Judging from the experience of foreign legislation, the debtor is not naturally exempted from liability after starting the personal bankruptcy procedure, but is required to perform legal obligations within 3-5 years. Some countries have short exemption periods, but at the same time, they have designed individual reorganization systems. At the same time, in this process, there will be some supervision measures: all stakeholders, including creditors, can supervise the debtor during the long exemption period, and they can report any improper or illegal behavior of the debtor.
This time limit can ensure that the debtor has been tested for a long time in this process.
Even some countries require debtors to truthfully declare all their property before entering bankruptcy proceedings, and then the supervisor or manager will inquire whether their property declaration is true; If the declared property is dishonest, you cannot enjoy the exemption treatment. In other words, from the first step of the debtor's declaration of creditor's rights, he is testing the debtor's integrity, and any violation or illegal behavior in this process may be investigated for responsibility by the personal bankruptcy law. If the debtor himself does not meet the conditions prescribed by law, it is impossible to obtain exemption treatment. If the debtor later discovers that he has maliciously evaded the debt, his exemption will also be revoked.
Some people think that "the bankruptcy of enterprises can reduce the joint and several liability of business owners, in other words, business owners can avoid debts and continue to live a good life." But ordinary people want to file for bankruptcy, especially because they can't afford the mortgage, so it is far away to file for bankruptcy to avoid debt. What do you think of this?
Han: The above interpretation can be said to be extremely irresponsible. Whether business owners or ordinary individuals apply for bankruptcy protection, it does not mean that they can easily evade debts.
From the global experience, once an individual is declared bankrupt, the court may indeed exempt some of his debts, but the bankrupt will generally give up the control over his existing assets and future financial management and leave it to the trustee for unified management (if it can be realized, it needs to be realized to pay off the debts). In addition to keeping the necessary living expenses, the bankrupt's future income should be handed over to the client to continue paying off debts. In addition, the bankrupt must not have high consumption, and even the expenses of eating, hairdressing and transportation will be strictly restricted, and it is even more impossible to go abroad for vacation at will. This strict restriction will last until the end of the bankruptcy protection period. The bankruptcy protection period can be four or five years, or seven or eight years or even longer.
In the case that the business owner has a personal joint and several liability guarantee for the enterprise, the premise for the business owner to declare bankruptcy is that all the personal property of the business owner is not enough to repay the debt for the enterprise. Even if the court forgives part of its debts, once the business owner declares bankruptcy, the stock wealth of the business owner is basically cleared. Otherwise, if it is still able to pay off its debts, the court will not accept its bankruptcy application.
In short, the personal bankruptcy system is not to protect "Lao Lai", but a credit repair mechanism, which legally admits that you are insolvent and creditors can no longer force you to pay your debts, otherwise it will be illegal. In this way, the debtor can get a second chance.
Why is China's personal bankruptcy law "difficult to produce"?
In our country, although the personal bankruptcy law has been discussed for a long time, it has not been put into practice, which makes our bankruptcy law in a state of "semi-law" (only enterprise bankruptcy law); The "dystocia" of personal bankruptcy system is precisely the cautious attitude adopted by legislators because they are worried about the binding force of malicious debtors.
However, with the improvement of personal property registration and credit information registration system, the external conditions required for personal bankruptcy system have become increasingly mature. In the future, the promotion of personal bankruptcy system will in turn promote the further improvement of personal property registration and credit information system.
Why has the personal bankruptcy system been implemented in Europe and America for many years, but not in China?
Late: The personal bankruptcy system is a very mature system with a history of several hundred years. It is a mechanism recognized by most countries in the world. China is a country with a large population and great regional differences, so it is difficult to legislate on personal bankruptcy. There are indeed some theoretical attempts in some economically developed areas. For example, Shenzhen Intermediate People's Court conducted an in-depth investigation on the Personal Bankruptcy Law on 20 16, and submitted the Personal Bankruptcy Ordinance (Legislative Proposal) to the Standing Committee of Shenzhen Municipal People's Congress on this basis. One of the highlights is the design of personal reorganization procedure, but as far as I know, it has not been authorized by the National People's Congress.
There is no objection to the necessity of personal bankruptcy system in China, and the main concern is feasibility.
The first is the concern about the debtor's evasion of debts. China now has a unified property registration system and complete credit information. Can it control debtors to evade debts? Although there are institutional arrangements, people will still think about whether this behavior can be controlled and whether it will be used.
For example, the debtor's property is registered in Beijing, but the property is in Shenzhen. If the property registration system is not unified, it may not be found in the system. The court in Beijing may only find information about Beijing, but not the real estate in Shenzhen. This may evade the court's review of property clues, leading to this part of the property out of supervision.
Second, at present, there is a lack of a very unified and perfect inquiry system in China, which can quickly retrieve the debtor's historical record of dishonesty. For example, it was recorded in the list of dishonesty in Shenzhen court, but can it be found in Beijing court? I may not find it. This may lead to the deviation of everyone's recognition of the procedure.
The unification of property registration and credit information is the focus of main opposition.
But these two reasons, in my opinion, do not constitute reasons for opposing legislation. The reason is to improve the credit information system and property registration system by promoting the personal bankruptcy system.
100 years ago, even in a developed country like Britain, it was impossible to have the transparency brought by electronic records. Why are there no major problems after personal bankruptcy? Including the Enterprise Bankruptcy Law, there is also the problem of enterprise property registration, but due to the lack of property registration and credit management system, the Enterprise Bankruptcy Law has not been implemented. There is no essential difference between the bankruptcy of people and the bankruptcy of enterprises, and the system of registration and credit is the same.
In addition, there is a problem of concept. China has been in a farming society for a long time, and the concept of "paying back debts is a matter of course" is deeply rooted in people's hearts.
It is mentioned in the reform plan of the National Development and Reform Commission that it should be gradually promoted. Why is it gradually promoted? In fact, it takes into account the public's acceptance: not all subjects apply personal bankruptcy from the beginning, but consider the business operators first. This kind of bankruptcy is called merchant bankruptcy, which begins with merchant bankruptcy, then extends to consumer bankruptcy, and finally extends to all natural persons.
Will it be piloted in the second half of the year?
Some media reported that the personal bankruptcy system is expected to be piloted in some areas in the second half of the year.
Han: I asked ten possible "insiders" and they all said they had never said anything.
In the text of the "Program", it is stated that "the natural person bankruptcy system will be gradually established". Some people may understand "step by step" as piloting first and then spreading out. As for the "second half", it may be that the "Planning" has been issued, and such an important document must be implemented as soon as possible, so it is natural to "set" the implementation time in the second half.
In fact, if you think about it a little, you can find that there is something wrong with this news.
First, the personal bankruptcy system is too important. Involving everyone's vital interests, personal bankruptcy law is definitely more concerned than enterprise bankruptcy law. Generally speaking, legal documents of this level are difficult to formulate without repeated discussion and revision for three to five years, even if it takes longer, it is normal. Without written laws, it is impossible to carry out the so-called pilot project. Moreover, the "Proposal" clearly puts forward "to study and establish an individual bankruptcy system". Again, we must "learn" first, which is far from implementation.
Second, generally speaking, there are policies for specific objects, not laws for everyone. If the individual bankruptcy law is piloted in some areas, it will obviously lead to unfairness.
Since the financial crisis in 2008, the debt ratio of the residential sector in China has risen rapidly, which has attracted high-level attention in recent years. Personal leverage ratio rises, what is the financial risk geometry? What is the significance and influence of promoting personal bankruptcy system under this background?
Han: In recent 10 years, the debt scale of China's residential sector has increased rapidly, and the debt risk has increased significantly. According to the data of the Bank for International Settlements, by the end of 20 18, the ratio of the debt balance of the residential sector to the GDP was 52.6%, up by 34.7 percentage points from the end of 2008, ranking first among the major economies in the world. In the same period, the ratio of debt balance to GDP in the residential sector of developed economies in the world decreased by 3.8 percentage points.
Judging from the absolute scale of the debt of the residential sector, according to the data of the Bank for International Settlements, from 2009 to the end of 20 18, the debt balance of the residential sector rose from 5.7 trillion yuan to 47.3 trillion yuan, an increase of 727%.
In terms of total amount, the risk of large-scale default in China's housing sector is controllable. Only the total savings deposits of residents with the highest liquidity are 1.5 times of the debt balance, but it must also be noted that excessive debt growth may lead to the outbreak of local debt risks. Especially with the diversification of lending channels, on the one hand, the concept of living in the present and spending ahead is accepted by a large number of young people, on the other hand, their income instability and lack of risk management awareness coexist. Once the personal capital chain is tight due to income decline or other factors, low-income young people may have a concentrated default risk. There have been many bloody cases in the field of P2P online lending.
Once an individual is in debt trouble, his work and life will be greatly affected. Without the personal bankruptcy system, even if the debtor has no subjective motivation to evade the debt, he may lose the opportunity to make a comeback in the process of creditors forcing the debt. Especially for young people who are not deeply involved in the world, once they are overwhelmed by heavy debts at the beginning of entering the society, it is undoubtedly not conducive to the healthy development of individuals and the stability and harmony of society.
In short, with the rapid rise of the debt scale of China's residential sector, it is increasingly urgent to establish a personal bankruptcy system. At present, the overall debt risk of the residential sector in China is still controllable. At this point, the establishment of personal bankruptcy system is conducive to the smooth release of risks.