其他
Individual Insolvency Law in Shenzhen
Tap "LegalTips"
to follow us
Previously, on more than one occasion, the Chinese government had already proposed that "the bankruptcy system should be improved and individual bankruptcy legislation should be initiated, to achieve an orderly exit of market participants." Meanwhile, according to the <Opinions of the Central Committee of the Communist Party of China and the State Council on Supporting Shenzhen in Building a Pilot Demonstration Zone for Socialism with Chinese characteristics> promulgated earlier, Shenzhen may undertake changes to existing laws, administrative regulations and local regulations in accordance with the authorization.此前中国政府不止一次提出 :” 要健全破产制度，推动个人破产立法,实现市场主体有序退出。” 而根据此前公布的《中共中央国务院关于支持深圳建设中国特色社会主义先行示范区的意见》，深圳可根据授权对法律、行政法规、地方性法规作变通规定。
According to the statistics, by the end of January 2020, there were 1.236 million registered individual businesses in Shenzhen, in addition to a large number of self-employed commercial entities in various forms. Due to the long-term absence of a personal insolvency system, parts of the aforementioned commercial entities bear unlimited debts once they encountered market risks.截至2020年1月底，深圳个体工商户123.6万户，此外还有大量各种形式的自雇的商事主体。由于个人破产制度长期缺失，这部分商事主体一旦遭遇市场风险，需要以个人名义承担无限债务。
In order to provide these “honest but unfortunate” businesses with the opportunity to obtain economic regeneration and encourage innovation and entrepreneurship, the establishment of a personal insolvency system is crucial. It goes without saying that further rules need to be explored and studied. For example, the definition of non-malicious criteria, how to deal with any retroactive responsibility during the exemption period and who is in charge of monitoring, how to achieve a balance between protecting the rights of creditors and ensure a bona fide relieve for insolvent debtors etc.? Workable legal rules and regulations need to be established for all such issues and should be constantly revised in practice.为了给”诚实但不幸”的市场主体提供获得经济再生的机会，从而激励创新创业，建立个人破产制度已是必然，但具体细则还需要探索和研究。例如，非恶意的标准如何界定、免责期间的责任追溯如何处理及由谁负责监督、保护债权人的权利和对善意破产者进行救济之间的平衡等问题，都需要规范，并在实践中不断修正。Now let’s take a look at the highlights of the Draft:下面来看一下征求意见稿的主要内容：
1. Debtors and creditorsIndividuals who have lived in Shenzhen and participated in Shenzhen’s Social Insurance scheme for three consecutive years may go into liquidation or settle the property if their assets are insufficient to pay off all the debts or if they are facing liquidity constraints as mentioned above, or if they are clearly unable to pay off all of their debts. At the same time, creditors who hold more than 500,000 yuan of maturing claims against their debtors alone or jointly with creditors may apply to the court for bankruptcy liquidation of the debtor.1. 债务人与债权人：
在深圳经济特区居住，且参加深圳社会保险连续满三年的自然人，因生产经营、生活消费导致资产不足以清偿全部债务或者明显缺乏清偿能力的，可以进行破产清算或者和解。同时，单独或者共同对债务人持有五十万元以上到期债权的债权人，可以向法院提出对债务人进行破产清算的申请。
2. Inspections and restrictionsFrom the date of bankruptcy, the insolvent debtor faces a minimum of three years, a maximum of five years of an inspection period for exemption. In insolvency proceedings and during the inspection period, the insolvent debtor has to accept restrictions with regards to his actions and rights, including on personal consumption and the inability to serve as a senior executive of a company. The Draft also provides a variety of indefensible debts and exonerations. For example, debts such as property damages arising from malicious torts cannot be forgiven, neither significant debts incurred as a result of extravagant consumption or a significant reduction in personal assets, even if the individual is insolvent.2. 考察期与行为限制：从破产之日起，破产人要面临一个最短三年、最长五年的免责考察期。在破产程序中和免责考察期内，破产人的多种行为和权利受到限制，包括限制高消费、不能担任公司高管等，还规定了多种不能免除的债务和不能免责的情形。比如，恶意侵权行为产生的财产损害赔偿金等债务不能免除，因奢侈消费等行为而承担重大债务或者使财产显著减少，即便个人破产后也不能免除剩余债务。
Many experts so far commented, that in order to prevent the abuse of personal insolvency proceedings and to evade responsibility for paying off debts, the key point lies in the establishment of a sound support system as follows: On the one hand it is necessary to improve the legal system of personal credit and property management, to prevent individual bankruptcy applicants from transferring property; and on the other hand it is paramount to improve criminal legislation to better enable the investigation of fraudulent bankruptcy applications and procedures to stop debtors maliciously evading their previously undertaken financial obligations.对于该征求意见稿，许多业内专家认为，为防止利用个人破产制度恶意逃避债务，关键还在于建立完善的配套制度。一是要完善个人信用及财产管理方面的法律制度，防止个人破产申请人转移财产；二是要完善追究个人欺诈破产的刑事立法，让恶意逃债的“老赖”无处可躲。
Tap "Read More" to visit our website