33. 破产者
33. The Bankrupt
在语言学上,“穷光蛋”(muflis,破产者)指的是没有钱财的人,也指没有足以支付其需用之物的人。其含义是:他已处于这样的境况,人们会说他“身无分文”,于是他便是muflis。这段圣训由穆斯林通过艾布·胡莱赖(愿安拉喜悦他)的传述而记录。
The bankrupt in the language is the one without money and the one without that which he would pay for his needs. It is meant by this that he reached a situation in which it is said about him, ‘There is no money with him’ so he is muflis. Muslim narrated via the way of Abu Hurairah (ra)
“穆斯林的使者ﷺ说:‘你们知道谁是破产者(muflis)吗?’他们说:‘在我们中间,破产者是没有银币和财物的人。’他说:‘我的民众中的破产者,是在复活日带着礼拜、斋戒和天课而来的人。他来了,却曾辱骂这个人,诬告这个人,吞食这个人的财产,流过这个人的血,又殴打这个人。于是这个人从他的善功中得到补偿,那个人也从他的善功中得到补偿。如果他的善功在对他的清算完成之前已经耗尽,就把他们的罪过取来,加在他身上。然后他被投入火中。’”
“That the Messenger of Allah (saw) said: ‘Do you know who the muflis is?’ They said: ‘The muflis among us is the one without a dirham or utensils.’ He said: ‘The muflis in my Ummah is the one who comes on the Day of Judgement with prayers, fasting and zakat. He comes and has insulted this one, falsely accused this one, eaten this one’s wealth, spilt this one’s blood and struck this one. This one is given from his good deeds and this one from his good deeds. If his good deeds finish before that which is upon him is judged, it is taken from their sins and they are thrown upon him. Then he is thrown in the Fire.”
这句话是关于破产者(muflis)的实际情况的陈述,以及先知ﷺ的圣训。
This statement of theirs is information about the reality of the muflis and the Prophet (saw)’s statement,
“那不是破产者”
“That is not the muflis”
可以不否定事实本身,而是说其意是:后世的破产更为严重、更为巨大,以至于今世的破产者相比之下如同富人一般。在fuqaha(教法学家)的惯用语中,破产者是指其债务多于其财产、其支出多于其收入的人。他们称其为破产者,尽管他仍有钱财,是因为他的钱财应当用于偿还债务,因此它就如同不存在一样。
It is allowed not to negate the reality but rather he intended that the bankrupt of the Hereafter is more severe and enormous such that the worldly bankrupt becomes like the rich man in relation to him. The bankrupt in the convention of the fuqaha is the one whose debts are greater than his wealth, and his expenditure greater than his income. They called him bankrupt even though he has money because his wealth deserves to be spent in the way of his debts so it is as if it is absent.
每当一个人的债务已经到期必须立即偿还,而他的财产又不足以偿付,债权人便请求法官对他实行限制处分(hijr)时,就有义务回应他们。宜公告对他实行限制处分,以使人们避免与其交易。若法官判决对他实行限制处分,则由此确立四条规则:第一,债权人对其特定财产享有权利;第二,禁止他处分其财产;第三,若满足相应条件,谁找到其特定财产仍在他手中,谁对该财产的权利就优先于其余债权人;第四,法官出售他的财产并偿还债权人。对破产者实行限制处分的依据是卡卜·本·马立克所传述的圣训。
Whenever the debts of the person are obliged immediately and his money does not pay them so his creditors ask the judge to hijr him, it is obliged upon him to respond to them. It is recommended to announce the hijr upon him so that people avoid transacting with him. If hajara is sentenced upon him, four rules are established by that:- The first of them is rights of the creditors relating to his designated wealth. The second preventing the disposal of his wealth. The third is that whoever finds his designated wealth with him has more right to it than the remaining creditors if the conditions exist. Fourth, the judge sells his wealth and pays the creditors. The evidence for the hijr over the bankrupt is what K’aab bin Malik narrated
“据阿勒·哈基姆记载,安拉的使者ﷺ曾为穆阿兹·本·哲白勒的财产设立限制(hajara),并为偿还其所负的债务而将其财产变卖。”
“That the Messenger of Allah (saw) hajara the wealth of Muadh bin Jabal and sold it for the debt upon him” (narrated by Al-Hakim).
据传,阿卜杜勒·拉赫曼·本·凯布(Abdurrahman bin K’aab)说:
And it has been narrated from Abdurrahman bin K’aab:
穆阿兹·本·哲白勒是他的族人中最优秀的青年之一,他从不吝惜任何东西。他借债不止,直到他的财产被债务吞没,于是他的债主们去向先知ﷺ申诉。若是有人会为了别人而放过别人,他们本会为了安拉的使者ﷺ而放过穆阿兹。于是安拉的使者ﷺ将他的财产变卖给了他们,直到穆阿兹一无所有地站在那里。
“Muadh bin Jabal was of the best youth of his people and he would not hold onto anything. He would not stop borrowing until his wealth was engrossed in debt and his creditors spoke to the Prophet (saw). Were anyone left for the sake of anyone, they would have left Muadh for the sake of the Messenger of Allah (saw). So the Messenger of Allah (saw) sold to them his wealth until Muadh stood without anything.”
当破产者的债务经可信的证人作证或他本人正确承认而确立,涉及他人的权利或需要支付罚金时,此时他所拥有的一切都将被变卖,债权人将得到公平对待。原则上也不允许监禁他,正如绝对不允许因困难而无力偿还债务的人被监禁,其依据是安拉(SWT)的话:
When there is established over the bankrupt the rights of people or that which obliges a money fine via trustworthy testimony or a correct confession from him, in this case all what he has is sold and the creditors treated equitably. Nor is it in principle allowed that he be imprisoned just as it is absolutely not allowed to imprison a debtor in difficulty due to the statement of Allah (swt):
“若借债者处于困境,则应宽限其等到宽裕的时候。”(古兰经 2:280)
“And if he is in difficulty, then consideration delay till a time of ease” [TMQ 2:280].
由穆斯林和艾布·达吾德从艾布·赛义德·胡德里传述的圣训,他说:
And due to what Muslim and Abu Dawud narrated from Abu Said Al-Khudri who said:
“那位名叫Umar的人监禁了父系一方的亲属,即没有女性同伴的男性,他们是需要被供养的子女”。
“That Umar imprisoned the relatives on the father’s side, the men without the women of the children who is to be provided for”,
这并不表示监禁欠债人,而只表示:如果负有抚养义务的人不抚养幼儿,则监禁此人。抚养费来自有能力供养者所应承担的钱财。这只表明对于不抚养幼儿的人应予监禁。
This does not indicate imprisoning the debtor but rather only indicates imprisoning the one upon whom maintenance is obliged, if he does not maintain the young child. Maintenance is from the money which is obliged upon the one capable to provide maintenance. This indicates the imprisonment of the one who does not provide for the young child alone.
关于破产者的规定是:法官将债务人的财产出售给债权人,并按比例在他们之间分配,因为除此之外没有其他能够公平对待他们的办法。据乌马尔·本·阿卜杜勒-拉赫曼·本·达拉夫传述:朱哈因部落的一个人曾赊购骆驼,致使骆驼价格上涨。他破产了,于是向欧麦尔·本·哈塔卜(愿安拉喜悦他)提出申诉。欧麦尔说:“至于后话,诸位啊。这位朱哈因部落的阿斯法·阿斯法,因其债务和诚信而感到欣慰,以至于人们说债务压垮了他。所以谁对他有债权,就请于清晨前来,我们将按签分配。”据传,欧麦尔·本·阿卜杜勒-阿齐兹判决破产者:其财产应在债权人之间分配,然后就让他这样待着,直到安拉(SWT)为他提供生计。
The rule regarding the bankrupt is that the judge sells to the creditors the debtor’s wealth and divides it among them in portions as there is no way to do them justice other than this. It has been narrated from Umar bin Abdurrahman bin Dalaf that a man from Juhayna would buy camels to a deferred period so they became high in price. He became bankrupt and raised it with Umar bin Al-Khattab (ra): ‘As for what follows, O people. Verily Al-Asfa Asfa Bani Juhaynah is pleased with his debt and trustworthiness that it be said the debts overtook him. So whoever has something over him, let him come early in the morning for we will divide it in lots.’ It has been narrated about Umar bin Abdulaziz that he judged the bankrupt that his wealth be divided between the creditors and then he is left until Allah (swt) provides sustenance for him.
破产者所持有的财产,在那些到场并主张权利、且其债权已到期的债权人之间,按债额比例分配。不计入其中的有:到场但未主张权利者,缺席但未委托代理人者,以及债权尚未到期者,无论其是否主张。这是因为债权未到期者尚未拥有权利,而未主张权利者在其未主张之前,不负有被给予的义务。这是指破产者在世的情况。至于已故的破产者,则对所有人一视同仁,无论到场或缺席、主张与否,每一位债权人,无论其债权是即时到期还是约定期限,均予以处理。这是因为所有期限都会因权利人或负有债务者的死亡而到期。 如果破产者身上同时存在安拉(SWT)的权利和仆人的权利,那么安拉(SWT)的权利优先于仆人的权利。因此,应先偿还他所遗漏的天课或赎罪金;如果财产不足以偿还全部,则在所有这些权利之间以抽签的方式分配,且不得以一项权利替代另一项。同理,对世人的债务也是如此:如果他的财产不足以偿还所有债务,则每位债权人按其债额比例,取得现存财产中与其应得相当的部分。 安拉(SWT)的权利优先于仆人的权利,其证据是真主的使者ﷺ所说的圣训。
The bankrupt’s wealth which is found with him is divided between the creditors by shares by value between those claimants present and seeking where time of their rights has fallen due only. There does enter among them the one present but not claiming or the absent who did not delegate or the absent whose time of his right has not fallen due whether he claims or not. This is because the one where the time of his right has not fallen due has no right yet while the one not claiming is not obliged to be given as long as he is not claiming. This is where the bankrupt is alive. As for the deceased bankrupt, it is judged for everyone, present or absent, claiming or not, and each one with a debt whether immediate or to a named period. This is because all periods fall due by the death of the one with the right or the one against whom there was a right. If there combines upon the bankrupt the rights of Allah (swt) and the rights of the slaves (‘ibad), the rights of Allah (swt) precede the rights of the slaves. So it is commenced with what he missed of zakat or expiation; if it does not cover everything, this is divided upon all these rights by lots without altering anything with another. Similarly the debt of people; if his wealth does not pay all of them then each one takes up to the level of his money of what exists. The evidence that the rights of Allah (swt) precede the rights of the slaves is what is established by the Messenger of Allah (saw) that he said:
"……真主的债务更有权利被偿还"
“…the debt of Allah has more right that it be paid”
以及他(SWT)的话:
And his (swt) statement:
“……你们应当偿还真主,因为真主更有权利被偿还”(布哈里根据伊本·阿拔斯的两段圣训所记载)
“…repay Allah as He has more right to be repaid” (Al-Bukhari narrated the two from ibn Abbas)
当破产者的财产被变卖时,应考虑其本人及其负有抚养义务之人的生活费用,因此他所需居住的房屋不得变卖。若他有两套房屋,而并不需要其中一套,则变卖他不需要的那一套。若破产者能够赚取维持自身生活及其应抚养之人生活所需的收入,或者他能够通过受雇等方式实际赚到这些,那么在这种情况下,他的全部财产都将被变卖,唯独他必须居住的房屋除外。若他无法做到这些,则留给他的,是足以维持他自己以及他有义务供养之人的生活所需的财产,其数额依照合理标准从财产中确定,直至财产在其债权人之间分配完毕。
When the wealth of the bankrupt is sold, his maintenance and the maintenance of the one whose maintenance is obliged upon him is considered so his house which he has need of residing therein is not sold. Whereas if he has two houses and has no need of one against the other, the one which he does not need is sold. If the bankrupt earns what furnishes provisions for him and furnishes provisions of those whom he must maintain or he is able to earn that practically by hiring himself, in this situation all his wealth is sold except his house which is a must that he reside therein. If he is unable to perform with out any of that, it is left for him that which suffices him and maintains him and those whom it is obliged upon him to furnish provisions for according to what is reasonable from wealth until he finishes from its division between his creditors.