论自然人破产制度的构建——对《民事诉讼法》第235条的探讨

我国现行的《民事诉讼法》第235条第五项规定,在自然人作为被执行人的案件中,裁定终结执行的依据是该被执行人“生活困难无力偿还借款,无收入来源,又丧失劳动能力”。事实上,这一条并不具有前瞻性,同时在实践中又由于其前瞻性的缺乏,导致许多执行法院在具体的案件中适用此条有困难,仅对类似案件裁定予以“终结本次执行程序”。这种无奈之举不但于法无据,而且是对终结执行本身目的的违背。

Bankruptcy of Natural Persons: A Study on Section 235 of the Civil Procedural Act of the People''''s Republic of China

Subsection 235.5 of the Civil Procedural Act of the PRC provides that,while the judgment debtor is a natural person,only by reason that the debtor "lives a poor life and is unable to pay off the debt,he/she has no income and is disabled" can the execution be terminated.Indeed,this provision is without perspective nature and has resulted in many difficulties in specific cases.What a court can do is barely to render a decision to "end this executive procedure," which is not only without legal support,but also contrary to the original aim of the executive procedure.In consideration of building a natural person bankruptcy system and equalizing the status of the natural person and the legal person in the market economy,this author urges the establishment of such a system,amendment of Subsection 235.5 of the Civil Procedural Act of the PRC,and restraint of the use of "ending the execution" and "ending this executive procedure."