The Reform Of The Council Regulation On Insolvency Proceedings And Its Enlightenment To China

The Council Regulation on Insolvency Proceedings has been implemented for more than ten years,and achieved good achievements.During the time,new technology such as Internet developed fast,anti-economic globalization movement intensified,off the European trend made Europe facing a split crisis.At the time when the regulation can not cope with the challenges brought by cross-border insolvency in the complicate circumstance,the new Regulation evolves.The new Regulation will be formally implemented on June 26,2017.The new Regulation are the most advanced results of the EU's cross-border insolvency legislation,reflecting the forefront of cross-border insolvency legislation,representing the highest level of cross-border insolvency legislation.It also has important reference significance for the construction of the legal system of cross-border insolvency around the world.After China's accession to the WTO,more and more Chinese enterprises participate in international competition.The relevant cross-border investment can be said to be explosive growth,the frequency of cross-border insolvency is also increasing.Our cross-border insolvency legal system is particularly important at this time.Based on the new Regulations on Insolvency,this paper aims to analyze the contents of the new regulations and draw lessons from them.Then making targeted recommendations to China's lagged cross-border insolvency legislation,so as to protect our cross-border investment.This paper consists of three Chapters as follows:Chapter I introduces the basic theory of cross-border insolvency.When it comes to the jurisdiction standard,it concludes territorial jurisdiction and personal jurisdiction.For example,place of domicile,place of business,place of property,nationality.The Universality Principle embodies the pursuit of unity of insolvency proceedings while resulting in the infringement of judicial sovereignty of other countries.The Territoriality Principle expresses the desire of a country to maintain its national interests to the greatest extent possible while resulting in an increase in the efficiency and cost of the entire cross-border insolvency proceedings.Besides,this chapter discuss the depecage and unitary in the application of choice of law.Unitary enhance the predictability of the judgment while resulting in the absence of protecting interests and rights of other countries.Depecage which is beneficial to the development of international cooperation adapted to the trend in today's increasingly complex cross-border trade and investment.Moreover,the author sketches the difference between recognition and enforceability.Recognition is a prerequisite for enforceability,but enforceability is not an inevitable result of recognition.To ensure the enforceability,it requires both their own efforts and cooperation.What's more,this chapter summarizes the origins and evolution of EU cross-border insolvency legislation.The intention of the EU to unify the legal system of cross-border insolvency began in the 1950 s and 1960 s.The implementation of the Council Regulation on Insolvency Proceedings means that the EU cross-border insolvency legislation has finally completed by the theoretical assumptions to the practical use of the qualitative leap.On this basis,the new regulation is completed the upgrading of the old regulations.Chapter II sets forth the reform of The Council Regulation on Insolvency Proceedings.Firstly,the author focus on the details of The Council Regulation on Insolvency Proceedings.The biggest breakthrough or innovation in the form of the Regulation is the regulation itself.The Regulation directly applicable to EU member states,and no longer need member states through their domestic legislature to convert it into domestic law.The author also focuses on the core provisions of the Regulation.On the choice of court,the Regulation establishes the center of main interests and the establishment in a mutually coordinated main-secondary insolvency proceedings.The center of main interests which decides the country to initiates the main insolvency proceedings should correspond to the place where the debtor conducts the administration of his interests on a regular basis and is therefore ascertainable by the third party.Establishment which decides the country that initiates the secondary insolvency proceedings shall mean any place of operations where the debtor carries out a non-transitory economic activity with human means and goods.The main insolvency proceedings and the secondary insolvency proceedings are not isolated,they have duty of cooperation and coordination.On the choice of law,the Regulation is dominated by general rule and combined with exception rule.The general rule is that the insolvency proceedings are ruled by Lex foci.However,some special legal issues such as third parties' rights in rem are not the case.On the recognition and enforceability of cross-border insolvency proceedings,the Regulation grants the main insolvency proceedings for automatic recognition.Finally,the priority among priorities in the chapter is the content of revision in the new Regulation,the author analyses the key terms.Firstly,the new Regulations moderately expand and reasonably limit the scope of the new Regulation,including positive conditions and negative conditions to make more explicit guidance.Many of the programs that focus on corporate rescue and restructuring are included,and some of the confidentiality of the insolvency proceedings are excluded from the scope of application.Secondary,the new Regulation enriches the main insolvency proceedings and the secondary insolvency proceedings.It provides for the main interests of individuals.Whatever a company or legal person,even individuals,the presumption of the center of main interest and establishments are limited,sometimes three months,sometimes six months.Thirdly,the new Regulation establishes insolvency proceedings of members of a group of companies,and calls for strengthening cooperation and communication,and proposes group coordination proceedings.Fourthly,the strengthen of cooperation and communication is also required on other insolvency proceedings.Fifthly,the new Regulation aims to establish interconnecting insolvency registers.European e-Justice Portal will serve as a central public electronic access point to information in these registers.What's more,the new Regulation also put forward the requirements of the publication of information and the protection of privacy data.Chapter III is about perfecting the legal system of cross-border insolvency in our China.This chapter first introduces the current development trend of cross-border investment in China,we are still one of the most attractive investment destination in the world.China surpassed Japan and become the world's second largest foreign investor in 2015.The coexistence of the four legal domains also increases the diversity and complexity of China's cross-border insolvency.This chapter goes on to discuss the current situation of China's outdated cross-border insolvency legislation.As to the domicile of the jurisdiction can not meet the requirement of economic globalization.We also set up numerous barriers to the recognition and enforceability of foreign insolvency judgment that violets cooperation of the international trend.The choice of law of cross-border insolvency is also a blank.This chapter focuses on the enlightenment of the reform of the new Regulations,and provides some specific and reasonable suggestions to improve the system of cross-border insolvency in China.Firstly,in accordance with the framework of the main and secondary insolvency proceedings,reconstruct the standard of jurisdiction.A preferable way is to establish the position of the center of main interest and establishment.Secondary,adopting depecage as the core and enriching the rules of choice of law are good strategy.Thirdly,for the purpose of win-win,strengthening communication and cooperation on insolvency practioners and courts.To reach a cross-border insolvency agreement is a usual way.Fourthly,to refine the recognition and enforceability of cross-border insolvency proceedings and judgment.The recognition standards of cross-border insolvency judgment should be more clear to prevent the abuse of standards such as public interest.And it is advisable to establish a clear and actionable process of recognition and enforcement of foreign insolvency.Fifthly,it's time to establish insolvency proceedings of members of a group of companies.Strengthening cooperation and communication,and proposing group coordination proceedings are imperative.