Research On The Bankruptcy From The Perspective Of Private International Law

With the rapid global economic integration, the issues of cross-border insolvency have caused more general concern in the international community. Under such circumstances, it is of great theoretical significance and practical value to make research into law conflicts in cross-border insolvency in Private International Law and a series of issues involved. In view of this, this paper takes a perspective view, from the core legal issues in extra-territorial effect to the fundamental legal problems involving jurisdiction, applicable law, and recognition in foreign bankruptcy and enforcement for in-depth exploration, for which many of the issues involved a number of solutions and proposals put forward. Meanwhile, the paper gives a systematic and comprehensive analysis from the perspective of comparative law concerning the continental law and common law countries as a reference, exploring immediate up-to-date international private theories of law, combined with current situation in China, and taken as the guiding principles to the judicial practice.The main body is divided into six chapters:Chapter one is piercing the legal issues of cross-border insolvency veil. Section one gives an elaborate exposition for the applicable law theories in different period that started from Statute Theory to Doctrine of the Its Seat of Legal Relationships and to Doctrine of the Most Significant Relationship, which may well be regarded as three milestones in the historical process of private international law, reflecting how people look for the principles in determining the exact applicable laws, rules and methods people search for is all for the solution in addressing the conflicting legal issues. Section two is the analysis and argument in the advantage and disadvantage of the two theories relating to extra-territorial effect– universalism and territorialism. Under present economic circumstances, global economic cooperation are more and more interactive, all countries are strengthening the two forms of universalism and territorialism together in order to gain their advantages and reduce their disadvantages fully, adopting the eclecticism based upon it, the new pragmatism attitude is, therefore, a right choice. Section three contains some reflections on legal issues of cross-border insolvency under the influence of global financial crisis. The sweeping global financial crisis has lead many multi-national companies bankrupt, while the current law system is so vulnerable in coping with the complicated and extensive cases of financial crisis caused by the cross-border insolvency. How to improve the legal measures against the financial crisis is a common challenge, facing the international community, there need to be consistent efforts for all the countries.Chapter two narrates issues and solutions in jurisdiction of cross-border insolvency cases. There must be the legal issues of jurisdiction as soon as the judicial department of a country accepted the case of cross-border insolvency which is closely connected with the applicable law and recognition and enforcement of foreign bankruptcy. This chapter discusses the question of jurisdiction conflicts in cross-border insolvency cases: who is entitled to start the bankruptcy procedure. Countries in the long-term discussions in bankruptcy theories and in legislation practice, some different jurisdiction systems have formed. Next, another section is written on the solution of jurisdiction over the conflicts in cross-border insolvency cases: coordination and reconstruction, namely, international coordination should be emphasized during the formation of construction standard of jurisdiction over cross-border insolvency. And the author believes that the jurisdiction over cross-border insolvency appears the following trend: the elastic jurisdiction standard is gaining more approval in the world. It is inevitable for establishment of many new jurisdiction standards, and beneficial in solving the conflicts in jurisdiction. Section three focuses on how to ascertain the problem of district jurisdiction, level of jurisdiction and the transfer of jurisdiction in accordance with China's current legal system.Chapter three is to set out issues and solutions in applicable law of cross-border insolvency cases. As will be seen, some problems will be addressed by the applicable laws in cross-border insolvency from Section one to Section two in detail: bankruptcy laws in different countries towards the debtor's cause of bankruptcy, bankruptcy ability, eligibility, starting time of bankruptcy proceedings, the composition of the consortium range of bankruptcy, creditor's exemption right and recall right, bankrupt trustee's requesting the right of rescission to the court towards the act of the bankrupt, creditor is whether allowed to set off at the time of adjudication of bankruptcy, the constitutive requirement the right of set off and what debt is allowed to set off, the range of bankruptcy claims, demarcation and order, receivership rules, and analyze lex fori, lex situs and law of relationship. Section three based on the previous two sections, discusses the legislation of the cross-border insolvency laws of the legal system and the method of choice of laws, put forward general rules of law of cross-border insolvency. The rules designed draw up the conflict rules separately according to different items in cross-border insolvency cases and assisted by exception terms of the applicable law to maximize coordinating conflicts and contradictions, which is a practical method in solving increasingly-complicated problems of applicable laws of cross-border insolvency cases.Chapter four is proceed to explore issues and solutions in recognition and enforcement of foreign bankruptcy proceedings. Section one and Section two are relating to the recognition and enforcement of foreign bankruptcy judgment and terms of enforcement and procedure analysis. Through discussions about recognition of foreign bankruptcy judgment terms in some countries and regions, procedure and methods of enforcement we may find, that all legislations are varying degrees of difference, even if in the same law, and even in the jurisdiction of the same sovereign state, the mutual recognition of adjudication of bankruptcy may also experience a lot of obstacles. Section three is the establishment of the new mechanisms to the recognition and enforcement of foreign bankrupt procedure. If a foreign bankruptcy judgment fails to obtain the domestic court's recognition and enforcement, not only the disputes are not resolved, and the legitimate interests of the parties concerned could not feasibly be protected either. As a result, it is possible to be courteous and broad-minded for reciprocity, reducing the restrictions toward the cross-border insolvency recognition and enforcement, focused on the parallel existence of foreign bankruptcy procedure coordination to the recognition and enforcement of foreign bankruptcy judgment has become the general trend.Chapter five is to provide the choice of coping with the legal issues of cross-border insolvency: the substantive law solution. In view of the unified efforts that the international community has sought for the solution of cross-border insolvency substantive laws, this chapter is devoted to outline Hague Conference on Private International Law, Society of International Law, UN Commission on International Trade Law, Insolvency and Creditors Rights Committee, as well as European Council, European Parliament, EU Council regional legislation in detail. This enables not only cross-border insolvency law resources development, also shows progressive integration and trend in bankruptcy law. It is easily seen that the pro-harmonious cross-border bankruptcy law as a theoretical conception or a long-term goal has its feasibility and necessity.Chapter six provides China's choice policy in dealing with the legal issues of cross-border insolvency law: this chapter represents the ultimate goal and purpose. Section one reviews the current legal system concerning cross-border insolvency law with a comprehensive view of the problems existing in China. Section two focuses on the relevant provisions stipulated in the Enterprise Bankruptcy Law of People's Republic of China in cross-border insolvency, the summary and evaluation in 2006. Section three based on the above content, by using foreign bankruptcy legislation and practices, combined with the actual situation in China, put forward specific legislative policy relating to cross-border insolvency law.