联合国跨境破产示范法及其参考意义
发布时间：2019-01-02 20:57
【摘要】：进入20世纪以来,经济全球化已经成为不可扭转的趋势,国际贸易日益昌盛,一批批跨国公司的崛起与衰落,造就了国际范围内有识之士对于进行跨境破产立法研究的强烈呼声。 本文首先简单阐释了“跨境破产”的相关定义以及适用范围,然后通过分析比较破产法学界长期相对并存两种理论:属地主义原则和普遍主义原则,进一步解释每一原则的可取与不足之处。研究两种理论的主要目的在于探究每一种法哲学背后所蕴含的利益冲突,为下一步介绍两个原则的延伸理论发展打下基础。合作属地主义及修正普遍主义作为两种古典理论的发展派生,分别在各国破产立法跨境条款指导原则中占有一席之地,也各有利弊。但跨境破产法学界更倾加向于修正普遍主义,因该指导思想下立法赋予外国债权人同等待遇,更加符合破产法的立法原则。 在第二章中,作者详细介绍了联合国贸易法委员会在修正普遍主义作为主要指导思想下,综合专家学者意见,借鉴各国经验教训的立法成果——《联合国贸易委员会跨境破产示范法》,通过评述其特色条款内容,譬如关于如何简化、快捷的承认他国破产程序,以及承认程序之后所能给予的救济措施。进而说明当今国际破产法现状下如何最大化债务人资产价值,最大程度的保护全球范围内债务人利益。 由于《示范法》仅为世界各国制定跨境破产相关条款提供参考性法律框架,其文本价值只在被一国采纳后具体实施中,才能得以体现。本文第三章通过采纳《示范法》后的美国新破产法第15章与其原有第304条的对比,阐述了破产立法改革后的美国破产法如何在实践中协调承认外国破产程序,更好的保护国内外债权人的利益。美国跨境破产规定中进一步具体明确了有《示范法》中提出的债务人主要利益中心(center of main interest)这一概念,不过由于司法实践中,通过事先推定债务人注册所在地为利益中心所在地的方式,仍然缺乏如何通过递交相反证据证明债务人的主要利益中心在其它地域,赋予法官过宽的自由裁量权也造成了有关案件的标准不一。 最后,本文简略介绍了2007年我国新破产法中第五条关于跨境破产的相关规定,新破产法的出台,一定程度上弥补了国家范围内跨境破产立法的空白,但具体措施略显简略,尤其是面对我国两岸三地港澳的不同法律制度以及相差颇为悬殊的破产法规,致使司法实践中很难处理过于复杂的跨境破产状况。
[Abstract]:Since the 20th century, economic globalization has become an irrevocable trend, international trade is flourishing day by day, the rise and decline of a number of multinational corporations, Has created the international scope of insight for cross-border bankruptcy legislation research strong voice. This paper first briefly explains the definition of "cross-border bankruptcy" and its scope of application, and then analyzes and compares two theories: territorialism principle and universalism principle, which exist in bankruptcy law circles for a long time. Further explain the merits and shortcomings of each principle. The main purpose of the study of the two theories is to explore the conflicts of interest behind each philosophy of law, and to lay a foundation for the further development of the extended theory of the two principles. As the development and derivation of two classical theories, cooperative territorialism and modified universalism have their own advantages and disadvantages respectively in the guiding principles of cross-border clauses in bankruptcy legislation of various countries. However, the law of cross-border bankruptcy is more inclined to amend universalism, because the guiding ideology of legislation gives foreign creditors equal treatment, more in line with the legislative principles of bankruptcy law. In the second chapter, the author gives a detailed introduction to the United Nations Commission on Trade Law (UNCITRAL), which synthesizes the opinions of experts and scholars under the principle of revised universalism. Drawing on the legislative results of countries' experiences and lessons-the United Nations Trade Commission Model Law on Cross-Border Insolvency, by commenting on its distinctive provisions, such as how to simplify and quickly recognize insolvency proceedings in other countries, And relief measures that can be granted after the recognition procedure. Then it explains how to maximize the value of debtors' assets and protect the interests of debtors in the world under the current situation of international bankruptcy law. Since the Model Law only provides a reference legal framework for countries in the world to formulate relevant provisions on cross-border insolvency, its text value can only be reflected in the concrete implementation after being adopted by one country. In the third chapter, by comparing Chapter 15 of the new bankruptcy law of the United States after the adoption of the Model Law with its original article 304, the author expounds how the bankruptcy law of the United States after the bankruptcy legislation reform conciliates the recognition of foreign insolvency proceedings in practice. Better protect the interests of creditors at home and abroad. The concept of the debtor's centre of main interests (center of main interest) as set forth in the Model Law is further specified in the United States cross-border insolvency provisions, but due to judicial practice, By presupposing the location of the debtor's registration as the location of the centre of interest, there is still a lack of evidence to the contrary that the debtor's centre of main interests is located in other regions, Giving judges too much discretion has also led to differing standards in cases. Finally, this paper briefly introduces the relevant provisions of Article 5 on cross-border bankruptcy in 2007, the introduction of the new bankruptcy law, to a certain extent, to make up for the gap in cross-border bankruptcy legislation in the country, but the specific measures are a bit brief. Especially in the face of the different legal systems of Hong Kong and Macao on both sides of the strait and the quite different bankruptcy laws and regulations, it is very difficult to deal with the complicated cross-border bankruptcy in judicial practice.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D996
本文编号：2398983
[Abstract]:Since the 20th century, economic globalization has become an irrevocable trend, international trade is flourishing day by day, the rise and decline of a number of multinational corporations, Has created the international scope of insight for cross-border bankruptcy legislation research strong voice. This paper first briefly explains the definition of "cross-border bankruptcy" and its scope of application, and then analyzes and compares two theories: territorialism principle and universalism principle, which exist in bankruptcy law circles for a long time. Further explain the merits and shortcomings of each principle. The main purpose of the study of the two theories is to explore the conflicts of interest behind each philosophy of law, and to lay a foundation for the further development of the extended theory of the two principles. As the development and derivation of two classical theories, cooperative territorialism and modified universalism have their own advantages and disadvantages respectively in the guiding principles of cross-border clauses in bankruptcy legislation of various countries. However, the law of cross-border bankruptcy is more inclined to amend universalism, because the guiding ideology of legislation gives foreign creditors equal treatment, more in line with the legislative principles of bankruptcy law. In the second chapter, the author gives a detailed introduction to the United Nations Commission on Trade Law (UNCITRAL), which synthesizes the opinions of experts and scholars under the principle of revised universalism. Drawing on the legislative results of countries' experiences and lessons-the United Nations Trade Commission Model Law on Cross-Border Insolvency, by commenting on its distinctive provisions, such as how to simplify and quickly recognize insolvency proceedings in other countries, And relief measures that can be granted after the recognition procedure. Then it explains how to maximize the value of debtors' assets and protect the interests of debtors in the world under the current situation of international bankruptcy law. Since the Model Law only provides a reference legal framework for countries in the world to formulate relevant provisions on cross-border insolvency, its text value can only be reflected in the concrete implementation after being adopted by one country. In the third chapter, by comparing Chapter 15 of the new bankruptcy law of the United States after the adoption of the Model Law with its original article 304, the author expounds how the bankruptcy law of the United States after the bankruptcy legislation reform conciliates the recognition of foreign insolvency proceedings in practice. Better protect the interests of creditors at home and abroad. The concept of the debtor's centre of main interests (center of main interest) as set forth in the Model Law is further specified in the United States cross-border insolvency provisions, but due to judicial practice, By presupposing the location of the debtor's registration as the location of the centre of interest, there is still a lack of evidence to the contrary that the debtor's centre of main interests is located in other regions, Giving judges too much discretion has also led to differing standards in cases. Finally, this paper briefly introduces the relevant provisions of Article 5 on cross-border bankruptcy in 2007, the introduction of the new bankruptcy law, to a certain extent, to make up for the gap in cross-border bankruptcy legislation in the country, but the specific measures are a bit brief. Especially in the face of the different legal systems of Hong Kong and Macao on both sides of the strait and the quite different bankruptcy laws and regulations, it is very difficult to deal with the complicated cross-border bankruptcy in judicial practice.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D996
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