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Study On China’s Extraterritorial Effect Of Cross-Border Insolvency

Posted on:2014-01-14Degree:MasterType:Thesis
Country:ChinaCandidate:R L ShiFull Text:PDF
GTID:2256330401978388Subject:Economic Law
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As the globalization of trade and investment, the cross-border insolvency casesare increasing day by day. In the process of cross-border insolvency, due to thedifferences in legislation and judicial practice of each country, many complex legalissues have emerged, including insolvency jurisdiction, law application, extraterritorialeffect, etc. By the universal attention of international society, extraterritorial effect ofcross-border insolvency has turned into one of the most important issues that need tobe addressed in the area of cross-border of insolvency and it is related to if a countryrecognize and enforce foreign country’s court decision and how to recognize andenforce foreign country’s court decision. UNCITRAL Model Law on Cross-BorderInsolvency promulgated in1997(hereinafter referred to as "Model Law") andInsolvency Proceedings Regulation of the European Union promulgated in2002(hereinafter referred to as "European Union Regulation") have had a greatinfluence in the domestic legislations of many countries, setting off a wave ofcross-border insolvency law reform. Japan, the UK, Australia and many other countrieshave brought the whole or a part of the "Model Law" into their domestic law system.However, our country only regulated the cross-border insolvency extraterritorial effectin Article Five of Enterprise Insolvency Law of the People’s Republic of China(hereinafter referred to as "Enterprise Insolvency Law"). As the Article Five is tooprinciple, it has resulted in inconsistencies in our judicial practice. In addition to the introduction and conclusion, this article has four chapters. Thefirst chapter introduces the meaning of three basic theories of cross-border insolvencyextraterritorial effect, which are Pure Universalism, Universalism Versus Territorialismand Neo-pragmatism, and also comparatives analyzes the advantages anddisadvantages of the three kinds of theories.The second chapter introduces our country’s legislation on cross-borderinsolvency extraterritorial effect during each period of history and analyzes problemsexisted in legislation of each period of history. What’s more, chapter two alsointroduces both the recognition and enforcement of China’s insolvency proceedings inoverseas and the recognition and enforcement of foreign countries’ insolvencyproceedings in China and also analyzes the problems existing in the judicial practicesby case study.The third chapter introduces and analyzes traditional countries’ legislation andlaw application on cross-border insolvency extraterritorial effect, so as to providereference for improving China’s legislation on cross-border insolvency extraterritorialeffect.The fourth Chapter put forward some humble opinions of system design ofChina’s cross-border insolvency extraterritorial effect. As for the application procedurefor recognition, China’s intermediate people’s courts where there are insolvency estatesshould review the authenticity of the insolvency procedure and the identity of theforeign representative. As for the review standards for recognition, firstly, Chinashould sign bilateral judicial assistance treaty with trading partners as soon possible, soas to afford law support in judicial practices. Secondly, China should establish theprinciple of legal reciprocity as the base of recognition and enforcement of foreignjudgments and orders. Thirdly, China should adopt the theory of objectiveness as thestandard of apparently violating of public policy. Fourthly, China should judge theprotection of the interests of our own creditors according to if our own creditors havebeen treated unfairly under the local laws of the courts. At last, China should make arule of the judge’s discretionary power in the area the review standards for recognition.As for the related procedures after recognition, China should divide foreign country’s insolvency procedure into main procedure and non-main procedure according to thedebtor’s main-interests-center, and give different relief measures.At the end of this article, the author calls for that as for the economic situation,China should take the "Model Law" and the "European Union Regulation" forreference, so as to speed up the pace of reform in cross-border insolvencyextraterritorial effect, enhance of international cooperation in cross-border insolvency,provide legal support for managing the cross-border insolvency affairs fairly andeffectively.
Keywords/Search Tags:Cross-Border Insolvency, Extraterritorial Effect, Pure Universalism, Universalism Versus Territorialism, Neo-Pragmatism
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