消費者債務清理的迷霧森林──談「不能清償之虞」的實務認定情形

Navigating the Labyrinth of Consumer Debt Clearance: A Practical Examination of “the Risk of Inability to Repay”

按消費者債務清理條例第3條固規定，債務人不能清償債務或有不能清償之虞者得聲請更生或清算程序，惟查我國法院常以其欠缺本條要件為由，駁回更生或清算之聲請。本文透過裁定資料之整理，發現各法院咸以債務人之收入減必要支出是否有餘額，判斷其有無不能清償或不能清償之虞。值得注意者，各法院就有餘額者是否構成不能清償之虞，並無統一標準。對此，本文先指出現行實務對於不能清償之虞的認定概況，再介紹德國消費者破產之相關規定與數據，希望藉由比較兩國法制之差異，重行檢討我國司法實務有待改進之處，最後提出若干個人淺見作結。

According to Article 3 of the Consumer Debt Clearance Statute, debtors who are unable or potentially unable to repay their debts may apply for a rehabilitation or liquidation process. However, in practice, courts often reject such applications, citing a lack of these statutory requirements. Through an analysis of court rulings, it was found that courts typically evaluate whether debtors have the inability to repay or are at risk thereof by deducting necessary expenses from their income to determine if a surplus exists. It is noteworthy that there is no uniform standard among the courts for assessing whether such surplus income indicates a risk of the debtor’s inability to repay their debts. This article first outlines the current practice in determining the risk of inability to repay, then introduces relevant provisions and data on consumer bankruptcy in Germany. By comparing the legal systems of the two countries, it aims to reassess where our judicial practice requires improvement. Finally, it presents some personal observations as conclusions.