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Institutional Analysis of China's new bankruptcy law in cross-border insolvency

Author: GuXiaoDan From: www.yourpaper.net Posted: 2010-06-24 22:17:07 Read:
Abstract: cross-border insolvency (cross-Border Insolvency), also known as cross-border bankruptcy, in a bankruptcy case, creditors, debtor or bankrupt property is located in two or more countries or jurisdictions bankruptcy. Cross-Border Insolvency (transnational bankruptcy / insolvency), also known as the International Insolvency means bankruptcy with foreign elements or international factors. 2 in cross-border insolvency cases, creditors, debtor or bankrupt property is located in two or more countries. For cross-border bankruptcy and cross-border insolvency distinction between the two concepts is rarely defined, although the cross-border bankruptcy in most cases with cross-border insolvency has the same meaning, I believe that they still have some differences from the above definition can be seen, the cross-border bankruptcy wider connotation, cross-border bankruptcy contains the Cross-Border Insolvency. In China, facing a national multiple-jurisdictional issues, a clear distinction between cross-border insolvency and cross-border insolvency connotation, is still a great significance for the future establishment and improvement of the system of cross-border insolvency. This article discusses the bankruptcy issue between China and other sovereign countries as cross-border insolvency analysis, in addition to including cross-border insolvency and that the cross-border bankruptcy also includes mainland China and Hong Kong, Macao and Taiwan regions between bankruptcy problems.
Review the issue of cross-border insolvency legislation in China, before the enactment of the new bankruptcy law, on the issue of cross-border insolvency legislation is blank. 1986 Bankruptcy Law of the People's Republic of China (Trial) "only applies to state-owned enterprises, does not apply to foreign-invested enterprises, the Act nor any of the provisions on cross-border bankruptcy. The relevant provisions of the Civil Procedure Law can be applied to interfere in the legal person of foreign enterprises, but its content is more simple, not covered by the special problems of cross-border insolvency. Other laws and regulations on foreign-invested enterprises were not required on this issue. Present, the international the ongoing insolvency law reform, the establishment of the United Nations UNCITRAL Bankruptcy Group, launched the world's model law on insolvency, INSOL International and the World Bank jointly launched a global creditors should abide by the 18 criteria. Of June 1, 2007 start of the "Law of the People's Republic of China on Enterprise Bankruptcy (hereinafter referred to as" Enterprise Bankruptcy Law "or the new bankruptcy law) is introduced in this context, the following of which can be related to cross-border bankruptcy a few questions briefly discussed.
Keywords: cross-border insolvency; creditors; debtor; Institutional Analysis
, The question of jurisdiction
Under the new bankruptcy law and section 205 of the Civil Procedure Law, the bankruptcy case should be governed by the People's Court of the debtor's place of domicile. "Civil Law" Article 39 of the legal domicile of its major office. Under normal circumstances, the major office and its main center of interest should be the same. Therefore, the Chinese law on bankruptcy jurisdiction of the basic provisions of the Model Law and the EU rules is consistent. However, according to the provisions of Article 243 of China's "Civil Law", even if a company has no domicile in China, but Chinese courts can also be based on the emergence of the property, the representative body of the subject matter is located in China and other reasons for its exercise of jurisdiction. Shows that the Chinese court for the opening of insolvency procedures actually has a very wide range of jurisdiction, there is a big conflict between this broad jurisdiction with generally recognized principles of jurisdiction in international. Therefore, it is very necessary to facilitate cross-border insolvency cases, cooperation between the Chinese court and the foreign proceedings, the jurisdiction of self-limiting.
Second, the extraterritorial application of the cross-border insolvency and recognition and enforcement
The provisions of Article V of the new bankruptcy law: "start bankruptcy proceedings in accordance with this Law, the property of the debtor outside the territory of the People's Republic of China into force. Bankruptcy case of a legally effective judgment made by a foreign court ruling, involving the debtor in China the People's Republic in the field within the property, application or request the court to recognize and enforce the people's court in accordance with the People's Republic of China concluded or acceded to an international treaty, or a review in accordance with the principle of reciprocity, that does not violate the basic principles of the laws of the People's Republic of China, without prejudice to national sovereignty, security and social and public interests, without prejudice to the legitimate interests of the creditors in the territory of the People's Republic of China, ruled that the recognition and enforcement. "the extraterritorial application of the provisions of the two bankruptcy proceedings in China and foreign insolvency judgment ruling Recognition and Enforcement of the requirements. Cross-border insolvency regime for the first time reflected in our legislation, can be described as a big step forward in the bankruptcy legislation. I only to the provisions of this section do a little following explore:
1, a series of complex problems caused by the Cross-Border Insolvency, bankruptcy extraterritorial effect of a basic theoretical issues of common concern by the international community, whether a country's bankruptcy proceedings should have extraterritorial effect, deal with cross-border insolvency cases. If the main Zhang Yiguo Court began bankruptcy proceedings with extraterritorial effect, the program and the property of the debtor is located outside the liquidation group shall be entitled to overseas property of the debtor to recover, incorporated allocated to creditors in the bankruptcy proceedings . Property included in the scope of the insolvency estate (the bankruptcy estate), that is, when it comes to when the debtor declared bankrupt in a country, whether its bankruptcy and property located in other countries included in the bankruptcy estate for centralized management, unified distribution problems, countries there is a big difference in the legislative and judicial, this difference comes from the States to take a different proposition treat extraterritorial effect, national legislation and jurisprudence can be summarized in the principle of bankruptcy regional, bankruptcy principle of universality and bankruptcy eclecticism . Taken in accordance with the provisions of the up and down two paragraphs, China is bankrupt universal doctrine in China began bankruptcy proceedings and the debtor in property outside of China is conducive to safeguarding the interests of our creditors. This provision is essentially in line with current international practice. But only such a general requirement is not enough, the court in the actual operation will encounter many problems outside the property is not directly under the jurisdiction of the Court, in fact, need to be resolved through bilateral or multilateral agreements on judicial cooperation served execution of the Court's declaration of bankruptcy, the new bankruptcy law does not address how to cooperate with foreign courts matters i no specific system support How to get the recognition and enforcement of foreign bankruptcy proceedings in China is a very difficult operating problems.
2, according to the first paragraph of the above provisions, with the popularity of the extraterritorial application of the bankruptcy proceedings rather than the declaration of bankruptcy, though it is the difference of the word, in the actual operation is very different. Bankruptcy proceedings creditors apply to the court to resolve the debtor is unable to pay the debt situation of a special kind of proceedings. It declared bankruptcy in practice for the sector, generally referred to as program after program and the declaration of bankruptcy before bankruptcy is declared, in accordance with the provisions of the new bankruptcy law, the bankruptcy proceedings include not only the liquidation proceedings, including reconciliation and reorganization proceedings. The beginning of the bankruptcy proceedings, taken by the new bankruptcy law is admissible Start doctrine, that the bankruptcy proceedings from the People's Court has accepted the case, the legal effect of the power of the court accepts the bankruptcy case. The bankruptcy proceedings of great significance when it is time to determine bankruptcy may revoke the invalid activity, determine the creditors of the debtor when it came under the protection of the bankruptcy law has a very important significance. In accordance with the requirements of the new bankruptcy law requires foreign entities effectiveness of insolvency proceedings from the date of acceptance, rather than the declaration of bankruptcy of the date of making is necessary to allow them to produce the recognition and enforcement of this is declared bankrupt before the program is not only procedural issues, such as the scope and procedures of the proposed manner of the application for bankruptcy, insolvency administrator appointed, the provisions of the filing of claims, the composition of the creditors' meeting convened the creditors voting rights allocated and exercised in a manner, include substantive issues, such as the review of an application for bankruptcy, bankruptcy connotation constitute reasons, the scope of the property of the bankrupt, insolvency administrator, bankruptcy claims of proof and confirmation. Program, in accordance with our legal solution, easier to get the recognition and enforcement of foreign entity, entirely in accordance with the laws of the country, may admit the law of the land have some conflict of laws. On how to resolve this conflict of laws, China's new bankruptcy law does not require. In addition, the issue of the recognition and enforcement of the settlement agreement that may arise before bankruptcy is declared, the new bankruptcy law does not provide.
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