The Analysis And Perfection Of Recognition And Relief Regimes Of Cross-border Insolvency In Our Country

Under the background of the increasingly frequent cross-border transaction and investment and financing activities,the insolvency of cross-border and region is tended to be normal,so the legal regulation of relevant issues are focused by all countries and regions.In the legal issues involved with cross-border insolvency,whether a country admits the effectiveness of overseas bankruptcy proceedings or not and how the country provide suitable assistance once it is admitted are the core and basis to handle the cross-border insolvency.As the respond to the problem,the fifth item of the Enterprise Bankruptcy Law revised in 2016 in our country firstly confirms the main principles of Chinese recognition of foreign bankruptcy judgments and rulings,which fills in the gap of cross-border insolvency.However,the principled legal framework is not enough to deal with complicated practice issues,so it is extremely urgent and important that the basic standpoint of recognition and relief regimes admitted by our country shall be confirmed as soon as possible and the concrete system with strict logic and operability shall be built and improved gradually.On the view of it,the paper makes the recognition and the relief regimes of cross-border insolvency as key points of study.There is analysis of the mechanism features and theoretical basis of the recognition of cross-border insolvency and the relief regimes through the introduction to relevant concepts and theories.Based on the sorting the legislation and judicial practice,there is specific analysis of the existing problems in the current mechanism of our country.Then,there is introduction,comparison and analysis of the relevant regulations on foreign mechanism with comparative law.Finally,it is suggested with the basic standpoints and concrete advices to improve the recognition and relief regimes.In the arrangement of the chapters,the paper is divided into five chapters.Except for the introduction,the main body of the paper is formed by chapter two,chapter three and chapter four these three chapters.Chapter two is the theory summary.Firstly,the paper clarifies the basic concepts of “cross-border insolvency”,“procedure of cross-border insolvency” and the “recognition and the relief regimes”.Then,there is analysis on the uniqueness and necessity of the recognition and the relief regimes of cross-border insolvency under the comparison of the recognition and implementation of general civil and commercial judgment.Furthermore,there is introduction and judgement on the main theory of the extraterritorial effect of cross-border insolvency,universalism and regionalism and their development.Chapter three aims at exploring and analyzing the specific questions of the recognition and the relief regimes in our country.In this chapter,there is observation to the legislation practice on the recognition and the relief regimes of cross-border insolvency in our country.Next,there is specific analysis on the four typical cases that have been handled by our courts.Based on these,this chapter proposes three specific problems in the current system,including review conditions,relief mode and specific measures,and coordination of parallel insolvency proceeding.Chapter four is the observation of the experience of recognition and the relief regimes of cross-border insolvency in the world.Three typical overseas legislations are selected in the chapter,including the United Nations Model Law on Cross-Border Insolvency,Chapter 15 of the U.S.Bankruptcy law and the Japanese Recognition and Relief Law.There is specific sorting,comparison and judgment on the mechanisms mentioned above.Chapter five proposes the basic standpoint and concrete suggestion on the recognition and relief regimes of our country.In the macroscopic aspect,this chapter proposes that our country shall adopt a more cooperative and open attitude in the issue of cross-border insolvency in our country.It is thought that improving and refining the current regulation with the premise of not adopting the Model Law meets the practical mechanism option of our country.With these as basic standpoints,the paper would raise some micro suggestion in improving the domestic mechanism.In the aspect of review condition of recognition,the range of recognition object shall be expanded properly and the “center of main interest” shall be introduced to build up indirect review rules and to adopt “constructive reciprocity” as the review standard of elements of reciprocity.In the aspect of relief measurement,the “separation mode” shall be confirmed and the specific assistance that can be obtained in different stages of overseas procedures shall be specified.As to the coordination of parallel proceeding,it is adopted with the principal of “one debtor one domestic proceeding”.