简析个人破产免责的前提条件

A Brief Analysis of the Preconditions for Personal Bankruptcy Exemption

摘要: 免责制度是个人破产法律制度的核心，其制度架构主要由免责条件与免责程序两大部分组成。作为我国首部个人破产领域的地方性法规，《深圳经济特区个人破产条例》初步确立了个人破产免责制度的框架，但在规则设计上仍有不足之处：一方面，免责条件存在不予免责债务类型规定不尽完善、法定不予免责情形规定较为笼统，缺乏对债务人实际偿付能力的综合评估；另一方面，免责程序存在申请时间严苛、程序复杂、清偿比例规则脱离实际等问题。为此，建议：针对免责条件，应修改不予免责债务范围(如对税收债务设置时效限制、将劳动债权等纳入优先清偿而非免责例外)、补充不予免责情形的原则性规定、确立债务人行为审查期限，并将债务人清偿能力纳入考量；针对免责程序，应设置更灵活的免责申请权、简化适格债务人免责程序、建立动态清偿比例规则。通过上述改进，构建更科学的免责规则体系，为全国性立法积累经验。

Abstract: The exemption system is the core of the personal bankruptcy legal system, and its institutional framework mainly consists of two parts: exemption conditions and exemption procedures. As the first local regulation in the field of personal bankruptcy in China, the “Regulations on Personal Bankruptcy of the Shenzhen Special Economic Zone” has initially established the framework of the personal bankruptcy exemption system. However, there are still deficiencies in the rule design: on the one hand, the exemption conditions are not perfect in terms of the types of debts that are not exempted, and the provisions on the statutory circumstances where exemption is not allowed are rather general, lacking a comprehensive assessment of the debtor’s actual repayment ability; on the other hand, the exemption procedures have problems such as strict application time, complex procedures, and the rule on the repayment ratio being detached from reality. Therefore, it is suggested that: for the exemption conditions, the scope of debts that are not exempted should be modified (such as setting a time limit for tax debts and including labor claims in the priority repayment rather than as an exemption exception), the principle-based provisions on the circumstances where exemption is not allowed should be supplemented, the review period for the debtor’s behavior should be established, and the debtor’s repayment ability should be taken into account; for the exemption procedures, a more flexible right to apply for exemption should be set, the exemption procedures for eligible debtors should be simplified, and a dynamic repayment ratio rule should be established. Through the above improvements, a more scientific exemption rule system can be constructed, and experience can be accumulated for national legislation.