2004-08-012024-05-17https://scholars.lib.ntu.edu.tw/handle/123456789/687972摘要：司法院於2003年所提出之破產法修正草案，並未如德、法、美、日等國之倒產法制般，就消費者倒產另定適合其需求之債務清理程序。惟消費者倒產之處理與企業倒產之處理不同，後者有企業解體、法人格消滅之選項，前者則必須以人格、生活之繼續為前提；消費者於倒產時通常情形雖缺乏財產可供分配，但只要保持其健康及職業，仍可相當程度預定將來之收入，而於企業倒產場合，即使可能殘留財產可供分配，亦不易預定將來之收入；基於此等特徵，若不導致消費者之債務奴隸化，關於其債務之清理，利用和解程序比破產程序較為妥適。不過，和解之成否，即清償計畫是否能被履行，多繫於債務人本身工作意願、生活習慣改善等更生意向之精神層面，此又不同於企業破產`之情形。因此，消費者債務清理之建制理念應特別強調生活再建及再破綻預防，使消費者能重新更生，保障其生存基本權，並促進、提高其義務遂行能力，儘可能永續性回復信用。為此，在消費者債務清理程序之建構上，應顧慮債務人家庭、職業之安定確保，試行因應各種具體狀況之更生教育，並不宜將免責制度定位為賦予誠實債務人之特典，而應認其係非不誠實債務人或有更生意向債務人之更生手段。因為破產法修正草案漏未規定消費者債務<br> Abstract: The amended draft of Bankruptcy Act, proposed by the Judicial Yuan in 2003, proposes legislation unlike that adopted in Germany, France, America, Japan and other countries relating to bankruptcy. Legal systems in these countries have incorporated debt relief procedure, in order to satisfy specific requirements. Management of consumer bankruptcy differs from that of business bankruptcy. Business bankruptcy offers the options of business dissolution, elimination of legal personal qualities and more, while consumer bankruptcy takes the continuation of personal qualities and life as prerequisites; in the usual bankruptcy case, consumers who lack properties for distribution can still estimate their future earnings to a certain degree as long as their health and profession are maintained. On the other hand, in the case of business bankruptcy, although there may be properties remaining for distribution, future earnings are difficult to estimate. In light of these characteristics, if consumers do not want to be manipulated by their debts, it is more appropriate for them to adopt reconciliation proceedings than bankruptcy proceedings concerning the reimbursement of debts. Nevertheless, the success of reconciliation -- that is, whether the debt relief plan can be fulfilled or not -- is linked with the debtors’ own willingness to work and improve living habits as well as intention concerning a fresh start. This also differs from the situation of business bankruptcy. As a result, the concept of the organization for consumer debt relief should particularly emphasize life rebuilding and the prevention of repetitive collapse enabling consumers to have a fresh start, protect their basic right to live, promote and enhance their ability to fulfill their obligations, and make the best attempt to recover their credibility. To meet this end, in the construction of consumer debt relief procedure, the ensuring of the security of debtors’ family and profession should be taken into consideration. In addition, fresh start education that corresponds to various specific circumstances should be a matter for experimentation. It is inappropriate to position the discharge system as the special right that endows benefits to honest debtors. It should be regarded as a measure for fresh start by dishonest debtors or debtors with the intention of fresh start. The drafted amendment to bankruptcy laws neglects the consumer debt relief procedure. Therefore, the way to implement the aforementioned concept of a consumer bankruptcy law system and establish the procedures for consumer reconciliation and consumer clear-up has become an important topic of contemporary law-making theory. This proposal aims to scrutinize this topic, carry out analysis and examination through the comparison method, and construct a consumer bankruptcy law system suitable for Taiwan’s nationals and society消費者破產免責制度重新更生Consumer BankruptcyDischarge SystemFresh Star