| About extra territorial of bankruptcy, every country has different theoryand practice. In the process of extra territorial of bankruptcy, three legislationprinciples have been adopted, which are territoriality, universality andeclecticism. Territoriality suggests validity of bankruptcy announcement in acountry only has effect on the property in that country, not effect on propertyin other countries, universality suggests the validity of bankruptcyannouncement is not only in announcement country but also in other countrieswhich have interests with property. It suggests all payment claims must beresolved by unified bankruptcy procedure. It doesn't allow payment to creditorindividually. The first part analysis on extraterritorial effects of bankruptcy .In termsof the malpractices that territoriality and universality have, theoretically itproduces eclecticism on extra territorial of bankruptcy, also called the limiteduniversality. It advocates that it can't be treated in the same way about extraterritorial of bankruptcy. It should be treated differently in nature of property.The procedure of bankruptcy of a country should have effect on the debtor'sproperty outside his nation not the estate outside his nation. The reason lies inthe belief that it doesn't influences on other countries' sovereignty and publicinterests or even threaten, if the property outside his nation is enforced, and itwill result in many bad consequences if the estate outside his nation isenforced. Furthermore in terms of the need of sovereignty interest and countryprotection, many countries in legislation rule that bankruptcy announcement inone country is valid in other countries, but it confirms the validity of extraterritorial of bankruptcy conditionally. The essential reason that eclecticismexists and develops in multination is to enlarge the scope of protection tonative creditor and economy. To some extent it relaxes the conflicts betweenthe territoriality and universality, conquers the un-equality of territoriality anddifficulty in practice of universality, meets the need of internationaldevelopment. Eclecticism increasingly becomes the main direction intransnational bankruptcy legislation, also make the international cooperationin transnational bankruptcy a tendency.The second part of research on the legislative model of internationalcooperation in the region of transnational bankruptcy. The tendency ofinternational cooperation that appears in transnational bankruptcy exists notonly in conception, but also in systems of international organization ordomestic legal document. In fact, recently, through the unremitting efforts ofinternational, it has produced many rules. The most effectiveness and authorityin it are Transnational Insolvency Demonstration Law that is passed in the 30thconference by UN Business Law Commission in May, 1997 and E.U.Insolvency Procedure Regulation that is passed in May, 2000 by E.U. Councilof Ministers, and gets into effect in May 31, 2002. Additionally, it makes greatprogress in native legislation in some countries, such as U.S. Bankruptcy Code1978 abates the territoriality and turns to the eclecticism.The main goal of Transnational Insolvency Demonstration Law is to pushthe cooperation of transnational insolvency. Its content is related to someimportant issues, such as the jurisdiction of transnational insolvency,confirmation and assistance to foreign insolvency procedure, the form ofcooperation with foreign court and foreign administrator, the harmonization ofparallel insolvency, the treatment of foreign creditor. It confirms the territorialvalidity of insolvency procedure and advocates that it should make a maininsolvency procedure a center, and some non-main procedure or assistanceprocedure to deal with transnational insolvency case insistently. And itemphases the most cooperation among the procedures.The most characteristic of E.U. Insolvency Procedure Regulation is that itendows the main procedure universal effect, as long as other procedure isstarted in other member countries and opposite protection measure is adoptedto start bankruptcy procedure in the country, liquidator the court appointed inwhich main procedure is started takes the rights the country which mainprocedure is started endows in other member countries. And according relatedregulation, liquidator can transfer the property that the debtor has in othermember countries. Regulation abolishes idealization of universality of singleinsolvency system, allows hypostatical procedure to exist and rule theharmonization of two procedures.The section 304 of U.S. Bankruptcy Code 1978 changes the conceptionof traditional bankruptcy territoriality. It allows U.S.'s court to confirm thevalidity of foreign insolvency procedure to some extent, allows the liquidatorwhich stated a main procedure in foreign country to appeal a hypostaticalprocedure to deal with debtor's property in US together, to prevent US creditorfrom the unfair distribution. Though it is not the whole practice aboutuniversality, but it is the first one to rule the cooperation of relative procedurein transnational insolvency area.In the third part of the article , legislative practice and amelioration onbankruptcy law in our country. About the transnational insolvency issue ourcountry's new Bankruptcy Law 2002 drafting out rules specially. It adopts thecontrolled universality and confirms foreign insolvency procedureconditionally. It expresses the legislation tendency in international cooperationand in accordance with recent judicatory practice in our country. But to makethe international cooperation of transnational insolvency come true, it hassome deficiencies that it rules principally and to concrete issues about how tointernational insolvency it doesn't rule clearly. It is in absence of practicabilityin practice. These relative issues are suggested to have in the new BankruptcyLaw.About jurisdiction we should imitate the methods of E.U. InsolvencyProcedure Regulation and Transnational Insolvency Demonstration Law. Weapart procedure from the main insolvency procedure and non-main insolvencyprocedure. And the jurisdiction of the former endows the court in whichdebtor's main interests is. And the jurisdiction of the latter endows the court inwhich debtor's office is. In practice, if it appears that two or more insolvencyprocedures exist together, it should confirm the main situation of maininsolvency procedure.About the acceptance and assistance to the foreign insolvency procedure,the protocol only rules it can confirm the validity of foreign insolvencyprocedure under some condition. It doesn't rule how to supply the assistance.The assistance mainly embodies in two aspects: one is to protect the domesticproperty of debtor's. It includes the stay to proceeding to debtor andenforcement. It forbids the dealing with debtor's property and payment. Underthe condition that domestic creditor's interests have not been damaged, itallows foreign liquidator to transfer the domestic property;the other is theexchange of intelligence between foreign court and foreign liquidator. Itprevents some creditor from getting extra payment.About the treatment of foreign creditor legislation will advocate domesticinsolvency procedure has validity commonly. It supply domestic legal basis toobtain the property of foreign debtor's according to it. But implement of extraterritorial of bankruptcy not only depends on the domestic legislation but alsothe confirmation of foreign country. Therefore the treatment of foreign mustbe complicated in dealing with transnational insolvency case. Commonly itshould endow foreign creditor civil person's treatment, allows foreign creditorto state or participate in domestic insolvency proceedings, and have the samerights that domestic creditor has. So if our country will adopt DemonstrationLaw, we must amend some issues. |
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