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The Legal System Research On Cross-border Insolvency

Posted on:2013-02-08Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y YangFull Text:PDF
GTID:1116330371972786Subject:International Law
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With the rapid advancement of the process of the global economic integration, the economic interdependence is strengthened ceaselessly in all the countries in the world. There are more and more new born international civil and commercial disputes, in which the cross-border insolvency disputes are highlighted day by day. Therefore, many countries paid attention to it by legislation. However, the cross-border insolvency system conflicts continued because most countries interpret the theory of bankruptcy in full consideration of the interest of their own countries respectively and all the countries formulate bankruptcy laws on the basis of the national sovereignty principle. In view of this, the article is written from the point of view of the cross-border insolvency system. Many research methods are used in the paper, such as comparative analysis ways, historical analysis method and the method of value analysis and so on. Combined with the specific provisions of the current bankruptcy law of China, I studied the model of the cross-border bankruptcy legislation of other countries in the article. I hope to make a contribution to the construction of the cross-border insolvency system of our own country and to resolve the impasse in the judge of cross-border bankruptcy disputes by researching the effect of declaration of cross-border bankruptcy, the confliction of jurisdiction and the application of cross-border insolvency rules. The thesis consists of 5 chapters. The main contents are as follows:The first chapter is about the legal analysis of cross-border insolvency system. This part consists of three chapters. The first part is the testing of cross-border insolvency system. On the basis of clarifying the connotation of cross-border bankruptcy system, I studied the origin and evolution of cross-border bankruptcy system. The second part is the theory of the legal foundation of cross-border insolvency system. It reveals the theory of cross-border insolvency system, namely the theory of balancing of interests, national theories, international cooperation theories and theories of international comity and so on. In the third part, the value orientation of cross-border insolvency system is discussed. It is proposed that cross-border insolvency system construction should adhere to diversified objectives, namely the balance of fairness and efficiency, the balance of order and justice, the balance of conflicting justice and substantial justice which is regarded as part of multiple value system of cross-border insolvency system.The second chapter is about the extraterritorial effect of transnational bankruptcy, which is the basic theory of cross-border insolvency. Firstly, it is studied that the theory of the extraterritorial effect of transnational bankruptcy in the paper, and in which the advantages and disadvantages of the regional pattern and the universal doctrine modes are summarized. Secondly, the mode of commentating judge of cross-border insolvency is commented based on the investigation of the legislation tendency of national bankruptcy. Finally, it is demonstrated that it is proper to apply the mode of commentating judge for the effect of cross-border insolvency under the historical evolution of confirming the validity of cross-border bankruptcy of our cross-border insolvency legislation.In the third chapter the method of dissolving the conflict of jurisdiction of the transnational bankruptcy is cleared. This chapter consists of two parts. In the first part, I clarified and reviewed the standards to confirm the jurisdiction of cross-border insolvency presented by the lawmakers of all the countries through studying the standards of the debtor as the center of the jurisdiction and the non-debtors as the center of jurisdiction systematically. In the second part I interpreted how to make a selection to resolve the conflict of the jurisdiction of bankruptcy on the basis of analyzing the reason to cause the national conflict of the jurisdiction of insolvency in all the countries.The fourth chapter is about the selection of laws applied to cross-border insolvency. In this part, firstly cross-border insolvency rules are divided into substantial bankruptcy rules and procedural bankruptcy rules and then it also examined the bankruptcy property boundaries, the entities of bankruptcy debt levels such as the conflict of substantial laws and the prevention of bankruptcy, the conflict of the elements of bankruptcy in procedural laws and so on. Furthermore, respectively it discussed the application of the substantive and procedural legal rules of bankruptcy in the paper.The fifth chapter is about the perfect of the cross-border bankruptcy system. In this part, based on the content of cross-border insolvency system mentioned above and combined with China's current bankruptcy legislation, I put forward to some specific suggestions on the extraterritorial effect rules of cross-border bankruptcy, jurisdiction conflict resolution rules and the application of the laws of cross-border insolvency.
Keywords/Search Tags:Cross-border insolvency, Extraterritorial effect, Jurisdiction, The application of laws
PDF Full Text Request
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