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A Study On Conflict And Coordination Between Maritime Proceedings And Bankruptcy Proceedings

Posted on:2020-05-25Degree:MasterType:Thesis
Country:ChinaCandidate:C M GengFull Text:PDF
GTID:2416330602457957Subject:Science of Law
Abstract/Summary:PDF Full Text Request
The bankruptcy of maritime enterprises will inevitably lead to the legal relationship of maritime litigation,such as the real right relationship of ships and the creditor's rights relationship of ships,as well as a large number of general non-maritime bankruptcy creditor's legal relations.At this time,maritime special procedures and bankruptcy proceedings intersect while they are non-interference in general,and the conflicts caused by different provisions also emerge.The purpose of this paper is to study how to coordinate the conflicts between the two procedures and facilitate their convergence.The first chapter is an overview of maritime proceedings and bankruptcy proceedings.Because both maritime procedure and bankruptcy procedure contain a wide range of contents,but not all the contents of the two procedures will conflict.Therefore,before discussing the conflict between maritime procedure and bankruptcy procedure,it is necessary to sort out the contents of the two procedures and define the scope of the conflicts.The second chapter is about the reasons of the conflicts between maritime proceedings and bankruptcy proceedings.Firstly,the legislative value of bankruptcy procedure is different from maritime procedure.Maritime proceedings pursue the complete liquidation of individual creditors with pertinence and priority to certain individuals,and ultimately eliminate debtors' debts to creditors.However,the bankruptcy procedure takes a comprehensive view of the debtor's property and creditor's rights.This is the internal cause of the contradiction between the two programs in parallel.Secondly,in cross-border bankruptcy cases,the different legal provisions of different countries also lead to different views in dealing with the same maritime bankruptcy case,which makes it impossible to follow the unified bankruptcy procedure and create contradictions.Chapters 3 and 4 are the main contents of this paper.Chapter 3 is mainly about the manifestation of the conflict between maritime proceedings and bankruptcy proceedings.One of the conflicts is the conflict of jurisdiction.The essence of jurisdictional conflict in maritime bankruptcy cases is the conflict between the special jurisdiction of maritime cases and the provisions of centralized jurisdiction in bankruptcy cases.In order to solve the conflict,the Supreme People's Court has proposed a solution,namely,designated jurisdiction.However,there are some defects in this solution.On the one hand,the content of the provisions is too general,on the other hand,there are difficulties in practical operation.In addition,cross-border maritime bankruptcy cases will also involve the jurisdictional attribution between countries.Because of the inconsistency of legal provisions and the contention for the jurisdiction of the same cross-border insolvency case between countries for the protection of their domestic creditors,the determination of jurisdiction becomes the primary problem in this cross-border insolvency case.The second conflict is the conflict between the bankruptcy creditor's rights liquidation procedure and the maritime creditor's rights liquidation procedure.The realization of creditor's rights is the fundamental pursuit of these two procedures.The core issue is what procedures should be followed to distribute the limited debtor's property.Maritime bankruptcy cases involve not only bankruptcy claims of non-maritime claims,but also special claims of maritime claims.However,the order of compensation when these two claims coexist is not regulated by clear laws and regulations.When dealing with the order of repayment in maritime bankruptcy cases,judicial organs often lack sufficient theoretical and legal support for their judgments because of the lack of clear provisions.In addition,the allocation of the Limited Liability Fund for Maritime Compensation is also an important issue.Chapter 4 discusses how to coordinate the conflict between the two procedures.In the determination of jurisdiction,this paper is divided into two parts to discuss the coordination scheme.First is the jurisdiction of maritime courts and local people's courts over maritime disputes.Second is the jurisdiction of cross-border maritime bankruptcy.For the jurisdictional conflicts between maritime courts and local people's courts,the suggestion of this paper is to determine the criteria of the central place of main interests,supplemented by designated jurisdiction.Cross-border maritime bankruptcy system should be based on the overall cross-border bankruptcy system.Our current cross-border bankruptcy system is the short board of the whole bankruptcy system,with only one principled provision.This paper compares the legislation and judicature of international organizations with those of shipping countries such as the United States and Singapore,and puts forward some suggestions for improvement from the following aspects:distinguishing the main procedures and auxiliary procedures,determining the criteria for the center of main interests;improving the principle of reciprocity,or relaxing the conditions for the principle of reciprocity;and ensuring an open and inclusive national attitude.In terms of liquidation procedure,the order of liquidation is the key point of the problem,so the main way to solve the problem is to determine a reasonable order of liquidation.This paper discusses how to determine the order of repayment of creditor's rights based on respecting the particularity of maritime creditor's rights.
Keywords/Search Tags:maritime proceedings, bankruptcy proceedings, conflict and coordination, cross-border maritime bankruptcy
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