A Study On The Rule Of Center Of Main Interests For The Review Of Indirect Jurisdiction In Cross-Border Insolvency Cases

The insolvency case of Han jin in 2017 once again triggered the discussion on the recognition and enforcement system of cross-border insolvency in China.The provisions of Article 5 in The Bankruptcy Law for Companies in China are too brief,and the rule of center of main interests,as the core of the indirect jurisdiction of cross-border insolvency,should be introduced into Chinese legislation.Through the study of the European Union Regulation on Insolvency Proceedings in 2000 and 2015,UNCITRAL Model Law on Cross-border Insolvency,Guide to Enactment and Interpretation of the UNCITRAL Model Law on Cross-Border Insolvency,Chapter 15 in the United States Code,and the relevant judicial practice,this paper makes a comparative analysis on the current typical rules,in order to provide feasible suggestions for the legislation of our country.The first chapter introduces the general situation of the case of Hanjin and Chinese provisions on the recognition and enforcement of cross-border insolvency.By analyzing the reasons why China did not participate in this case,it points out that Chinese legislation is in urgent need of introducing relevant specific provisions.The second chapter discusses the universality and long-term nature of the rule of center of main interests,and clarifies that it is the core of rules of cross-border insolvency,indicating the necessity of introducing the rule into Chinese legislation.The third chapter studies the location identification standards of the rule and compares and analyzes the different standards.The center of main interests is generally presumed to be the debtor's registered office.In judicial practice,the European Union tends to strengthen the presumption,while the United States weakens the presumption.At the same time,the European Union,in determining which country is the location of center of main interests,focuses on the factor that creditors can identify,while the United States integrates all the factors to identify the location and develops the nerve center criterion.The fourth chapter discusses the time standards of the rule.The European Union and UNCITRAL choose the beginning of the foreign insolvency proceeding.The domestic court should determine whether the country in which the foreign court is located is the location of center of main interests based at this time.The United States has determined to choose the time when the foreign applicant submits an application for recognition and enforcement since 2014.The fifth chapter puts forward some legislative suggestions for our country.In terms of the location identification criteria,China should strengthen the presumption that the center of main interests is the debtor' s registered office,and focus on the factor that creditors can identify.In terms of time criteria,it is recommended to select the beginning of the foreign insolvency proceeding.Chinese courts should determine whether the country in which the foreign court is located is the location of center of main interests based at this time.