中国跨境破产国际司法合作机制的完善 —以海运公司跨境破产实践为例

Economic globalization will inevitably bring the problem of cross-border bankruptcies of enterprises. In recent years, with the outbreak of COVID-19 and the intensification of geopolitical conflicts, the number of cross-border bankruptcies of enterprises has increased. Strengthening international judicial cooperation on cross-border bankruptcies has become an inescapable issue in the judicial work of various countries. At present, China deals with cross-border judicial cooperation in bankruptcy mainly based on the principle provisions of Article 5 of the current Enterprise Bankruptcy Law. According to the regulation, when a foreign representative applies to a Chinese court for recognition of that country's insolvency proceedings and representative status, the Chinese court must first ascertain whether there is a precedent in that country for granting Chinese judicial reciprocity. This approach is not only contrary to the current international rules on judicial cooperation in handling cross-border bankruptcy cases, but also detrimental to improving the efficiency of cross-border bankruptcy cases and protecting creditors and debtors in cross-border bankruptcy cases. Therefore, it is urgent to improve the international judicial cooperation mechanism of cross-border bankruptcy. At present, China has started the revision of the Enterprise Bankruptcy Law. This paper believes that we can take the revision of the Enterprise Bankruptcy Law as an opportunity to adopt the Model Law of Cross-border Bankruptcy to make special provisions on the issue of cross-border bankruptcy. The status and treatment of foreign insolvency representatives and creditors, the conditions and methods for providing judicial assistance in foreign insolvency proceedings, and the recognition and enforcement of other judgments and rulings in foreign insolvency proceedings should be regulated and refined, so as to improve China's international judicial cooperation mechanism on cross-border insolvency. We will foster a sound business environment in China and provide a sound judicial environment for international economic and investment development. The first part of this paper, by listing a series of data, points out that China has become a big country of two-way investment, and in the current global economic downturn, the number of cross-border bankrupt enterprises at home and abroad is increasing, and the importance of international judicial cooperation on cross-border bankruptcy becomes prominent. The second part analyzes the concept of cross-border insolvency, and introduces the current situation of international judicial cooperation on cross-border insolvency, with emphasis on the application of the Model Law on Cross-border Insolvency of UNCITRAL. The third part analyzes and evaluates the current legislation of cross-border bankruptcy in China, and analyzes the specific practices of international judicial cooperation in cross-border bankruptcy in China based on the practice of cross-border bankruptcy of shipping companies in recent years. The fourth part lists the different views of Chinese scholars on whether to adopt the Model Law, and then puts forward suggestions on improving the international judicial cooperation mechanism of cross-border bankruptcy in China, that is, taking the opportunity of the revision of the Enterprise Bankruptcy Law, adopting the Model Law and making special provisions on cross-border bankruptcy in the Enterprise Bankruptcy Law. The conclusion summarizes the main idea of the thesis.