太子奶集团破产案之法理分析及思考
发布时间：2018-12-18 09:33
【摘要】：2009年3月,花旗银行向开曼大法庭申请对太子奶进行破产清算。4月,该庭裁定太子奶破产,并委任香港保华会计师事务所作为太子奶的临时清盘人,对太子奶国内外的资产进行清算。此事经媒体曝光后,立即在国内引起轩然大波。法律界人士认为,如果中国法院承认开曼大法庭的破产清算裁定,该案就会成为中国企业跨国破产的第一案。该案的一些法律问题引起了法律界人士的见仁见智大讨论。 本文从几个热点问题入手,对太子奶破产案进行法理分析。认为开曼大法庭对湖南太子奶集团破产案并没有管辖权,原因是当事人约定了管辖,排除了外国法律的适用。花旗银行向开曼大法庭申请太子奶破产清算,由于违背了当事人之间的约定,并且导致太子奶陷入了严重的危机,造成了巨大的损失,应当承担侵权责任。中国法院对开曼大法庭的裁定不予承认与执行于法有据,因为开曼法庭不具有管辖权,且裁定违背了中国的国家利益及中国债权人的利益,不利于对企业的挽救和债权人利益的保护。高科奶业与太子奶的托管协议是合法有效的,但高科奶业因违反协议和合同目的,理应将经营权交回给太子奶。其强占经营权的行为是无法律依据,且损害了债务人和债权人的利益。高科奶业作为托管方,并无权对企业进行破产重整。其强行推行破产重整不仅违背了债务人和债权人的利益,且于法无据。 针对本案出现的一些法律问题,本文也提出了一些思考。太子奶的破产使我们不得不思考离岸公司的法律风险,对此我们应如何防范。在破产案中我们应如何维持债务人、债权人、托管人、政府方面的利益平衡,是否应以政府利益优先,是否应关注债务人的利益诉求,对债权人我们应如何平等保护等?株洲市政府的托管模式号称是政府救企模式的创新,但其结果是不但没有把企业救活,反而加速并最终导致了其破产。我们应如何界定政府对企业管理的边界,应不应该依据市场经济的规律办事,这也值得反思。在跨国破产中,我们应如何保护国外债权人的利益,如何与外国法院进行国际协作,对公共秩序保留原则是否应慎用,是否应按国际规则和国际惯例办事,如何才能做到既能维护国家利益和国内债权人债务人利益,又能使中国法院的判决得到外国法院的承认与执行等,这也是一个值得研究的问题。
[Abstract]:In March 2009, Citibank applied to the Cayman Court for the bankruptcy of Prince Milk. In April, the court ruled that Prince Milk went bankrupt and appointed Hong Kong's Paul's Accounting firm as provisional liquidator of Prince Milk. Liquidate the assets of Prince Milk at home and abroad. This matter by the media exposure, immediately in the domestic uproar. Legal professionals believe the case could become the first case of multinational bankruptcy in China if a Chinese court recognizes the Cayman Court's liquidation ruling. Some of the legal issues in this case have aroused the opinions of the legal profession. Starting with several hot issues, this paper analyzes the bankruptcy of Prince Milk. The author holds that the Cayman Court does not have jurisdiction over the bankruptcy of Hunan Prince Milk Group because the parties agreed to jurisdiction and excluded the application of foreign law. Citibank applied to the Cayman Court for the bankruptcy liquidation of Prince Milk, which broke the agreement between the parties and caused the Prince Milk to fall into a serious crisis, resulting in huge losses, and should be liable for infringement. The decision of the Grand Cayman Court is not recognized and enforced by Chinese courts because it does not have jurisdiction and is found to be contrary to the national interests of China and the interests of Chinese creditors, Not conducive to the rescue of enterprises and the protection of the interests of creditors. The trust agreement between Hi-tech dairy and Prince Milk is legal and effective, but due to the breach of agreement and contract, Hi-tech Dairy should return the right of operation to Prince Milk. There is no legal basis for its expropriation, and it damages the interests of debtors and creditors. High-tech dairy industry as trusteeship, and no right to bankruptcy reorganization of enterprises. It not only violates the interests of debtors and creditors, but also has no basis in law. In view of some legal problems in this case, this paper also puts forward some thoughts. The bankruptcy of Prince Milk has forced us to think about the legal risks of offshore companies. How should we maintain the balance of interests among debtors, creditors, custodians and governments in bankruptcy cases?. Should we give priority to the interests of the Government?. Should we pay attention to the interests of the debtors and how should we protect the creditors equally?. Zhuzhou Municipal Government's trusteeship model is claimed to be an innovation of the government's mode of rescuing enterprises, but the result is that instead of rescuing the enterprises, it accelerates and eventually leads to its bankruptcy. How should we define the boundary between government and enterprise management and whether we should act according to the laws of market economy? this is also worth reflecting. In transnational insolvency, how should we protect the interests of foreign creditors, how to cooperate with foreign courts, and whether the principle of public order reservation should be applied with caution, and whether we should act in accordance with international rules and practices? How to protect the national interests and the interests of the creditors and debtors in China and to make the judgments of Chinese courts recognized and enforced by foreign courts is also a problem worth studying.
【学位授予单位】：湖南师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D997;D922.291.92
本文编号：2385651
[Abstract]:In March 2009, Citibank applied to the Cayman Court for the bankruptcy of Prince Milk. In April, the court ruled that Prince Milk went bankrupt and appointed Hong Kong's Paul's Accounting firm as provisional liquidator of Prince Milk. Liquidate the assets of Prince Milk at home and abroad. This matter by the media exposure, immediately in the domestic uproar. Legal professionals believe the case could become the first case of multinational bankruptcy in China if a Chinese court recognizes the Cayman Court's liquidation ruling. Some of the legal issues in this case have aroused the opinions of the legal profession. Starting with several hot issues, this paper analyzes the bankruptcy of Prince Milk. The author holds that the Cayman Court does not have jurisdiction over the bankruptcy of Hunan Prince Milk Group because the parties agreed to jurisdiction and excluded the application of foreign law. Citibank applied to the Cayman Court for the bankruptcy liquidation of Prince Milk, which broke the agreement between the parties and caused the Prince Milk to fall into a serious crisis, resulting in huge losses, and should be liable for infringement. The decision of the Grand Cayman Court is not recognized and enforced by Chinese courts because it does not have jurisdiction and is found to be contrary to the national interests of China and the interests of Chinese creditors, Not conducive to the rescue of enterprises and the protection of the interests of creditors. The trust agreement between Hi-tech dairy and Prince Milk is legal and effective, but due to the breach of agreement and contract, Hi-tech Dairy should return the right of operation to Prince Milk. There is no legal basis for its expropriation, and it damages the interests of debtors and creditors. High-tech dairy industry as trusteeship, and no right to bankruptcy reorganization of enterprises. It not only violates the interests of debtors and creditors, but also has no basis in law. In view of some legal problems in this case, this paper also puts forward some thoughts. The bankruptcy of Prince Milk has forced us to think about the legal risks of offshore companies. How should we maintain the balance of interests among debtors, creditors, custodians and governments in bankruptcy cases?. Should we give priority to the interests of the Government?. Should we pay attention to the interests of the debtors and how should we protect the creditors equally?. Zhuzhou Municipal Government's trusteeship model is claimed to be an innovation of the government's mode of rescuing enterprises, but the result is that instead of rescuing the enterprises, it accelerates and eventually leads to its bankruptcy. How should we define the boundary between government and enterprise management and whether we should act according to the laws of market economy? this is also worth reflecting. In transnational insolvency, how should we protect the interests of foreign creditors, how to cooperate with foreign courts, and whether the principle of public order reservation should be applied with caution, and whether we should act in accordance with international rules and practices? How to protect the national interests and the interests of the creditors and debtors in China and to make the judgments of Chinese courts recognized and enforced by foreign courts is also a problem worth studying.
【学位授予单位】：湖南师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D997;D922.291.92
【引证文献】
相关硕士学位论文 前2条
1 秦明月;跨国企业破产管辖权研究[D];苏州大学;2013年
2 张辉;跨境破产程序探析[D];黑龙江大学;2013年
，本文编号：2385651
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