Research On Recognition And Assistance System In Cross-border Maritime Bankruptcy

Not the same as the problems initiated in the normal cross-border insolvency,those happened in the bankruptcy of transnational shipping enterprises are more complex,including the conflict of jurisdiction in insolvency law and maritime law,and the conflict in their proceedings.Arrest of ship is the most important part in the maritime proceeding.The use of recognition and assistance system in cross-border insolvency law become the optimal solution to coordinate the conflicts.Obstacle,about joining the cooperation in dealing with cross-border bankruptcy cases,absolutely caused by the he vacancy of detailed regulations in Chinese cross-border maritime bankruptcy system,and the short of relevant experience in the recognition and assistance.The update of the results in the particular research to establish relevant system in China is necessary.The paper targeted in the analysis of recognition and assistance system used in cross-border maritime bankruptcy cases.The first chapter defines the concept of cross-border insolvency and maritime cross-border insolvency,and discusses the conflicts in the issue between cross-border insolvency and ship arrest,including the description in the origin and the performance of those conflicts.The second chapter reviews the theoretical basis of the recognition and assistance in cross-border bankruptcy law,and introduces the typical models in the legislation,and the regulations about coordinating those conflicts within the models.The third chapter take the case of Hanjin as an example,compares the differences for the legislation in European countries,the nation that adopt the UNCITRAL Model Law and those do not join.And discuss the practice of main regulation in the recognition and asistance system for several countries.The forth chapter proposes on establishment of the Chinese system,especially for recognizing and assisting foreign bankruptcy procedure,in the dealing with cross-border maritime bankruptcy cases.The critical ideas for the reformation in Chinese cross-border insolvency law are listed as follow.At first,the reciprocity principle must be soften.Then on the aspect of legislation,do not adopt the UNCITRAL Model Law,but use it for reference for the reformation of Chinese bankruptcy law,hold on different attitude in different areas.Chose the"recognition as assistance" model,the same as it in European Union,to respond for the inter-regional conflicts.And use the "two-step acknowledgment and assistance" model,leaning from Japan,to respond for the handling of the conflicts in other countries and regions except for HongKong,Macao and Taiwan.For recognize the foreign insolvency proceeding,debtor's center of main interest can be adoptas.the criterion to judge the jurisdiction of insolvency law,and the Article 5 in Chinese insolvency law should be interpreted to make appropriate use of the public policy exceptions.For assist the the foreign insolvency proceeding,the manner,scope and content of assistance should be formulated,especially for the dealing of ship arrest.