Research On Recognition And Assistance Of Foreign Procedure In Cross-border Bankruptcy

Under the background of deepening international cooperation in "One Belt And One Road",how to properly solve the conflicts and contradictions in the cross-border insolvency,whether to take the attitude of opening up and cooperation in the field of cross-border insolvency,reasonable to settle cross-border investment generated in the process of liquidation or bankruptcy reorganization,equal protection the legitimate rights and interests of different stakeholders,create a fair and just business environment is of great significance.Due to the differences in legislation and judicial practice in different countries,many complex legal issues arise.Among them,the recognition and assistance system in cross-border bankruptcy has become one of the most important issues to be solved in cross-border bankruptcy,which is related to whether and how to recognize and implement the bankruptcy judgment of a country's court.In 2006,Article 5 of The Enterprise Bankruptcy Law of China made the principle stipulation on the extraterritorial effect of bankruptcy procedure for the first time in legal form.In July 2019,Thirteen Ministries,including the Supreme People's Court,jointly issued The Reform Plan for Accelerating the Improvement of the Exit System for Market Entities,proposing a principled guideline to improve the rules for cross-border bankruptcy and related enterprise bankruptcy,and promoting the resolution of cross-border bankruptcy and complex subject bankruptcy.However,China's provisions on cross-border bankruptcy recognition and assistance are too general to provide specific legal basis for judicial practice.How to change the phenomenon that the recognition and assistance system legislation in cross-border bankruptcy is too principled and the judicial practice is conservative and solidified has become a new major problem in the process of perfecting the reform of market subject exit system.The topic of this paper is to explore the solution to this problem.On the recognition and enforcement of cross-border insolvency judgments,UNCITRAL,in the form of the model law,provided clear guidance to states around the world.Therefore,in this paper,the author firstly analyzes the current judicial practice of cross-border bankruptcy in China,the current status of cross-border bankruptcy recognition and assistance system and the current judicial difficulties faced by various countries,and then puts forward the existing problems.Then,from the perspective of the two model laws promulgated by UNCITRAL,this paper focuses on the analysis of the provisions of the Model Law on Recognition and Enforcement of Insolvency-Related Judgments with Guide to Enactment and Chapter 3 of Model Law on Cross-Border Insolvency with Guide to Enactment and Interpretation on the recognition and assistance system of cross-border insolvency.Finally,the paper compares and analyzes the convergence of bankruptcy legislation to the model laws in different countries,and then tries to answer the feasibility of the convergence of relevant domestic legislation to the model laws.In addition to the introduction part,this article mainly includes five chapters: the first chapter of the recognition and assistance for cross-border insolvency system carries out theoretical analysis of the existing problems,existing in its particularity and difficulty are discussed,and our country the status quo of cross-border bankruptcy recognition and assistance system and the judicial dilemma faced by are expounded.The second chapter of two model laws the provisions of the applicable scope and the premise of system are introduced,the analysis of the method of demonstration of the scope of application,the two demonstration method of the background and the relationship between the two demonstration method after the demonstration method of the "Foreign Proceeding/Insolvency Proceedings”,“Foreign Representative/ Insolvency Representative ","COMI","Exception of Public Policy" and other important premise concept is explained,the recognition and help for the following chapters on cross-border bankruptcy system of concrete analysis lays the foundation.On the basis of the Model Law on Recognition and Enforcement of Insolvency-Related Judgments with Guide to Enactment and Chapter 3 of Model Law on Cross-Border Insolvency with Guide to Enactment and Interpretation,chapter 3 and chapter 4 respectively introduce the system of cross-border insolvency recognition and assistance established in the model law for detailed analysis.Detailed analysis is made through the application of foreign representatives,the examination of national courts,the relief after recognition and the protection given to stakeholders,covering all aspects of the system of recognition and assistance provided for in the model law.On the basis of the analysis of the previous chapters,the fifth chapter firstly analyzes the model law's effect on the adopted countries,and then studies the establishment of China's cross-border bankruptcy recognition and assistance system and puts forward relevant Suggestions.