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1.
Consumer bankruptcy regulation in the United States as well as in many other countries allow consumers to petition for a partial
debt discharge. Usually, a debt release is possible when the debtor behaves in the creditors’ best interest and after filing
for bankruptcy signs over her entire disposable income for a fixed period. Depending on the country the period lasts between three and six years. We show that a fixed period distorts the consumer’s
ex-post incentives to work hard. Instead, we suggest to adequately reduce the outstanding claim and to make debt release contingent
on payment. When the consumer manages to pay back the reduced amount, the rest of the initial debt should be discharged immediately.
In effect, the consumer becomes the residual claimant of her endeavors. The period of good conduct is effectively variable.
JEL classification D18. D91. K29 相似文献
2.
破产原因的反思与解析——兼对《企业破产法》第2条的解读 总被引:3,自引:0,他引:3
破产原因是债务人是否被宣告破产的关键,其破产原因的法律界定影响着破产法维护社会经济秩序功能的发挥。从破产原因的一般理论出发,借鉴国外破产原因的立法规定,反思我国1986年破产法中的破产原因,进一步解析2006年《中华人民共和国破产法》第2条,将破产原因区分为不能清偿到期债务且资不抵债和不能清偿到期债务且停止支付两种,分别适用于债务人自愿提出破产申请和债权人提出破产申请的情况。 相似文献
3.
DONALD BOREN 《American Business Law Journal》1985,23(3):451-466
The premises of the bill with respect to consumer bankruptcy are that use of the bankruptcy law should be a last resort; that if it is used, debtors should attempt repayment under Chapter 13, Adjustments of Debts of an Individual with Regular Income, and finally, whether the debtor used Chapter 7, Liquidation, or Chapter 13 … bankruptcy should be effective, and should provide the debtor with a fresh start.1 相似文献
4.
Xinxin Wang 《Frontiers of Law in China》2006,1(2):281-299
The bankruptcy law is an integral part of the legal system of societies with market economy. After many years of preparation,
the draft of the new bankruptcy law in China was submitted to the Standing Committee of the National People’s Congress twice
and is waiting for the third approval to be enacted. Drawing on the experiences of other countries, the new bankruptcy law
tries to carry out the concepts of market economy, eliminate the residual influences of planned economy that existed in the
old law, protect lawful rights and interests of creditors and debtors, and maintain the order of socialist market economy.
This thesis analyzes and researches on the major and controversial issues that emerged during the legislation of the new bankruptcy
law from the aspects such as the principle of the legislation, criteria of bankruptcy, preservation or abolishment of policy-related
bankruptcy, protection of the employees’ rights and interests of bankrupt enterprises, the creditors’ committee system, the
trustee system, reorganization system to prevent bankruptcy, and the legal obligations of bankrupt, and so on. It also gives
a comprehensive introduction to the innovation and modification of the new bankruptcy law. 相似文献
5.
论破产中尚未履行完毕的合同 总被引:1,自引:0,他引:1
尚未履行完毕的合同在破产中的处置,有不可自由选择和可自由选择两种。不可自由选择的合同的范围,主要是出于维护交易安全和保护合同当事人的预期而划定,如委托合同、附所有权保留的买卖合同、房屋租赁合同和知识产权许可使用合同等。对可自由选择的合同,完善的破产立法一方面应规定选择权,明确其性质,另一方面也应区别不同情形对其做适当的限制,在追求破产财产最大化的同时兼顾合同债权人利益的保护。在上述各个方面,我国《破产法》均有改进的余地。 相似文献
6.
管理人在破产程序中承载着管理、协调与监督的职能,其职责的行使牵涉多方利益。因此,保证管理人身份上的独立、中立以及专业性显得至关重要。现有的中介机构可以分担管理人职责,应当设立管理人协会,负责管理人名册的编制、管理等工作。管理人的法律地位应为法定机构,由人民法院指定并决定其报酬,债权人会议享有异议权。对于"无产可破"的案件,建议设立专项基金作为支付管理人报酬的来源。 相似文献
7.
破产法利益制衡机制论——兼论职工利益保护 总被引:2,自引:0,他引:2
破产的直接作用是以国家强制力保障决定市场经济能否正常运转的信用关系的法律制度形式——债,在债务人丧失清偿能力时的最终公平实现,维护全体债权人、债务人的合法权益,维护社会利益,保障正常的经济秩序。可见,破产法的主要价值目标,就是对债权人、债务人、社会利益进行平衡,以维护社会正义。而我国现行破产法体系,却对债权人利益保护不利,社会利益也因行政手段干预而歪曲与异化,债务人利益被弱化,国有资产流失严重,破产利益制衡机制的操作性与透明性被破坏。法律制度的缺陷,导致社会秩序的受损,该破产的不能破产,该保护的不能保护,三角链条的锈化,引起连锁反应的多米诺骨牌效应。可见,在制定新《破产法》的前夕,用破产利益制衡机制重新构架我国破产法体系是必要的。本文对此略作探索,以抛砖引玉。 相似文献
8.
Sefa M. Franken 《European Law Journal》2005,11(2):232-257
Abstract: After having discussed the weaknesses of the universalist and territorialist approaches to transnational corporate bankruptcy law, this article argues that a free‐choice régime could combine the advantage of ex post value maximisation of the firm's assets with a comparatively higher degree of ex ante predictability to investors. In addition, it could lead to a better alignment between corporate ownership structures and corporate bankruptcy régimes. Moreover, a free‐choice régime could potentially open the door for regulatory competition in corporate bankruptcy law. However, EC Regulation 1346/00 on insolvency proceedings implements a system of modified universalism, which allows for strategic ex post forum shopping by debtors while keeping the national legislatures’ monopoly in the field of corporate bankruptcy in place. It is suggested that even though it cannot be predicted that a free‐choice régime will pressure state lawmakers to improve their corporate bankruptcy laws, a system of free choice could redirect the law‐making agenda in the EU by focusing the coordination efforts of lawmakers on those issues—such as security interests in property and statutory priority rights—which could negatively affect the proper functioning of the Internal Market, while enabling Member States to customise corporate bankruptcy laws to local preferences and needs. 相似文献
9.
Sperow EH 《Journal of health law》2001,34(3):487-500
Section 525(a) of the Bankruptcy Code prevents government entities from discriminating against debtors based on the debtor's bankruptcy filing. This Article analyzes how this provision is applied to healthcare providers who file for bankruptcy. Some commentators have expressed concerns that because of Section 525, the federal government is unable to deny a bankrupt provider a new Medicare provider agreement due to the debtor's failure to pay debts discharged during bankruptcy. This Article, however, argues that Section 525 does not apply to a provider agreements because it is not a "license, permit, charter, franchise, or other similar grant" as defined by the statute. Therefore, the author concludes that debtor healthcare providers should not be allowed back into the Medicare program without first paying their statutorily required debts. 相似文献
10.
Angel Semerdzhiev 《Family Court Review》2023,61(1):189-202
A matrimonial proceeding on its own is complex and can have far-reaching implications. Add in a spouse filing for bankruptcy in the midst of the proceeding, and the process becomes even further complicated and quite possibly hostile. This Note analyzes the bad-faith tactics of debtor spouses filing for bankruptcy in the middle of a divorce proceeding and proposes an amendment to the Bankruptcy Code that permits bankruptcy courts to dismiss bad faith petitions before they negatively impact divorce proceedings. 相似文献
11.
12.
Jianhua Xiao 《Frontiers of Law in China》2007,2(4):538-562
The reform of civil procedure has been taken as an important topic by both scholars and judges in the recent twenty years.
Cases and judges’ practices offer materials and opportunities for scholars to carry out researches, which help judges find
the direction of the reform on civil procedures. However, it is not advisable to reconstruct the absolute adversary system
and pure due process in China to reduce the great power of the court. Therefore, it is essential to review on the basic theory
of civil procedure and overcome the inefficiency and disorganization of the judicial power by regulating judges’ power and
independence as well as their responsibilities.
Xiao Jianhua, professor and doctoral tutor of China University of Politics and Law. He got a master degree in Southwest University
of Politics and Law in 1995 and a doctor degree in China University of Politics and Law in 1998. He had been a Fulbright Visiting
Scholar studying at Law School of Northwestern (USA) in 2003–2004. His research field covers civil procedural law and evidence
law. His six books on civil procedural law and evidence law are published in China, his another book on bankruptcy will be
published in England. Now his research is focused on comparative law. 相似文献
13.
Gary Chartier 《Law and Philosophy》2012,31(1):99-123
Many anarchists believe that a stateless society could and should feature laws. It might appear that, in so believing, they
are caught in a contradiction. The anarchist objects to the state because its authority does not rest on actual consent, and
using force to secure compliance with law in a stateless society seems objectionable for the same reason. Some people in a
stateless society will have consented to some laws or law-generating mechanisms and some to others – while some will have
consented to none. Someone’s obedience to a legal requirement could be justly enforceable absent the state, nonetheless, given
either her actual consent to the requirement or to a mechanism responsible for generating it or the coextensiveness of the
legal requirement with a moral requirement. And it could thus be just on the anarchist’s own terms to enforce a narrow range
of positive legal requirements even against outlaws who had declined to consent to them. 相似文献
14.
Oscar Couwenberg 《European Journal of Law and Economics》2001,12(3):253-273
Extensive research on bankruptcy still has not made it possible to end the efficiency discussion concerning the need for a reorganization provision in bankruptcy laws. In this paper, I discuss the pervasiveness of asset sales in bankruptcy procedures and the effect it has on survival rates. Without these figures on going concern asset sales Western countries show astonishingly low firm survival rates. In addition, it becomes clear that the bankruptcy system in the US may be under-researched to such an extent that it seriously confounds our view of bankruptcy resolution. 相似文献
15.
Mingrui Guo 《Frontiers of Law in China》2006,1(2):267-280
The right of priority, or preemption, is the security interest of priority claim enjoyed by the creditor to the ordinary or
particular properties of the debtor provided directly by law. It can be distinguished clearly from similar rights and can
be stipulated in the Law on Property Rights. The right of priority falls into the category of security interests. Though it
differs from the guaranteed security interest or lien, the right of priority, taking the property as its object, the guarantee
of the performance of particular creditor’s right as its aims, possesses the basic characteristics of the security interests.
Thus, such a rule shall be stipulated in the Law of Property Right. The right of priority is instituted directly by the law
in consideration of the social legislative policies. Such considerations are necessary to the realization of social fairness
and justice and the protection of public interests and social welfare. From the perspective of legislative polices and techniques,
it is more reasonable to institute the right of priority in the Law of Property Right than resort to other replacing rules
in order to secure particular creditor’s right. Instituting the right of priority in legislation will not increase the risk
of deals; on the contrary, it will help the parties concerned foresee risks. Therefore, it helps safeguard the safety of the
deals. 相似文献
16.
Zhenglai Deng 《Frontiers of Law in China》2006,1(4):514-523
By referring to the phenomena of the ever intensifying consummation of anti-fake laws resulting in ever increasing inundation
of faking cases, this article describes the correlation between the consumers’ rights and the research on Chinese law. It
is further pointed out that the relationship between the study of Chinese law and the protection of consumers’ rights typically
interprets the difficult situation of Chinese law research: On the one hand, Chinese law does not give the required attention
to the protection of consumers’ rights concerning people’s health and life safety. Worse, all the discussions about the issues
of consumers’ rights are all oriented on serious urbanization tendency and departmental law science tendency, judging or measuring
the concrete realities of consumers’ rights in China based on the concepts of western laws. The specific time-and-space element
of China endowing essential meanings in the research of consumers’ rights in Chinese law as the base and evidence of research
is eliminated, leaving the research of Chinese law in a distorted position in China.
__________
Translated from China Reform, No. 9, 2005 相似文献
17.
This paper takes the position that interpretations of legal discourse are invariably taken in the context of socio-pragmatic
realities to which a particular instance of discourse applies. What makes this process even more complicated is the fact that
social realities themselves are often negotiated within the mould of one’s subjective conceptualisations of reality. Institutions
and organisations, including people in power, often represent socio-political realities from an ideologically fuelled perspective,
engendering many ‘illusory’ categories often a result of contested versions of reality. To substantiate this view, we discuss
interpretations of a number of interesting contemporary and controversial laws, including America’s Patriot Act and Hong Kong’s
proposed Article 23 of the Basic Law. Both laws can be seen as illustrative of the definitional conflict that abstract concepts
such as democracy and human rights are subjected to in their own specific socio-political contexts. While America crowns itself
with democracy and Hong Kong struggles to achieve it in effective synthesis with its unique political arrangement, the laws
produced by both contrasting political systems are unexpectedly similar, aiming for the moderation of basic rights. The actions
of both governments set against their beliefs and discourses, and furthermore set against one another and other media voices,
particularly those of non-governmental organisations, political activists, and other socio-political groups, demonstrate contestation
of realities, giving rise to ‘discursive illusions’, which seem to be interpreted not so much on the basis of their linguistic
construction but more on the basis of socio-pragmatic factors, such as trust, belief, transparency, control and power. 相似文献
18.
Malcolm Voyce 《Law and Critique》2010,21(2):183-198
It is implicit in a western understanding of law that law is a series of generalisations, which are universal and which aim
to promote social community. At the same time ‘law’ is expected to operate in a territory (rather than for specific people
or castes) where it applies, and to apply to a community of rights-bearing subjects. Such a view of law may have reflected
part of the values of the European Enlightenment where law was seen as a rational science and where religion has been seen
as excluded from law. An alternative route in the study of law is to study ‘transgressions’. The literature on ‘transgression’
suggests transgressions form an amorphous category and a proper examination of them is not closed by the normal taxonomy between
the studies of ‘law as obedience’ versus ‘laws as violation’. In one sense transgressions are part of the rule, yet a separate
category in their own right. I use the concept of ‘transgression’ to attempt to describe the legal significance of ‘violations’
in the rules of the Buddhist monks (Vinaya). I conclude that a proper consideration of the role of sexual desire in the Vinaya
allows me to show that ‘violations were accepted within an institutional framework, that ‘violators’ were not excluded from
the order of monks and that sexual experience could be seen as an alternative, if controversial, path of spiritual development. 相似文献
19.
Jeffrey Swanson 《Law and human behavior》2010,34(3):176-185
Involuntary outpatient commitment is a highly controversial issue in mental health law. Strong supporters of outpatient commitment
see it as a form of access to community-based mental health care and a less restrictive alternative to hospitalization for
people with severe mental illness; vocal opponents see it as an instrument of social control and an unwarranted deprivation
of individual liberty. Kahan and colleagues apply the theory of “cultural cognition” in an empirical study of how cultural
worldviews influence support for outpatient commitment laws among the general public and shape perceptions of evidence for
these laws’ effectiveness. This article critiques Kahan et al. and offers an alternative perspective on the controversy, emphasizing
particular social facts underlying stakeholders’ positions on outpatient commitment laws. 相似文献
20.
The purpose of the present paper is to investigate whether the process of transition from an agricultural to an industrial
society was a watershed for white-collar crime, such that this type of crime increased rapidly in connection with the industrialization
process. The theoretical reasoning behind this notion is that the transition process promoted a mentality characterized by
self-centered values and a culture of competitiveness, which together paved the way for fraud perpetrated at the expense of
others. The data are from Statistic Sweden’s historical records and cover the period of 1864–1912. Since there is no way to
measure all crimes that can be defined as white collar crime, we have used bankruptcy offences as an example of white collar
crime. The results do not support the notion that the transition period from an agricultural to an industrial society showed
an increase in bankruptcy offences. Instead, the results show that when fluctuations in the economy are taken into account,
the industrialization process per se entailed less bankruptcy offences. On the other hand, other research using the case of
Sweden has shown that it was first after World War II that bankruptcy offences increased rapidly. Our argument is that the
transition process as a structural mechanism had a greater impact on bankruptcy offences when industrialized capitalism became
advanced.
相似文献
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