Between restriction and protection: the experience, problems, and improvement path of judicial recognition of personal bankruptcy exempt property in China

Abstract

Personal bankruptcy exempt property refers to the property retained to ensure future survival and development to safeguard the basic life, career development, and other rights and interests of the debtor and dependents. It is a strong solution to the problems of the right to survival and development of the honest but unfortunate debtor, among other things. This thesis handles the Personal Bankruptcy Regulations of Shenzhen, the personal bankruptcy judicial documents, and judicial cases issued by the courts as samples and comprehensively analyzes the problems in the judicial practice of exempting property from personal bankruptcy in China. It innovatively proposes that the scope of recognition of exempted property adopts “inflation as the main approach” and sets up exceptions to protect the interests of creditors and debtors through the principle of “balance of interests”; Construct a recognition standard that “only specifies the types of property” and sets regional limits, protecting and limiting the rights of debtors under the principle of moderate protection; Implement the construction model of exemption property that combines “enumeration” and “generalization”, and under the guidance of the “flexibility principle”, establish a scope of exemption property that is in line with China’s national conditions. This study provides a new sample for international comparative research on the system of personal bankruptcy exempt property. It gives a new direction for exploring the judicial recognition of personal bankruptcy exempt property in China.