Text: "Legal Person" magazine, reporter Wang Qian.
Enterprise bankruptcy reorganization is one of the ways to reactivate the vitality of enterprises, and the bankruptcy law is a key link in the construction of the rule of law in the market economy.
Zhu Zhengfu, deputy to the National People's Congress, president of the Guangdong Bankruptcy Administrators Association, and lawyer of Haotian Law Firm, provided by the interviewee.
The 2024 National People's Congress and the National People's Congress will be held soonZhu Zhengfu, a deputy to the National People's Congress, president of the Guangdong Bankruptcy Administrators Association and a lawyer at Hylands Law Firm, put forward suggestions on the revision of the Enterprise Bankruptcy Law, calling for the establishment of a special chapter to provide for a cross-border bankruptcy system.
Zhu Zhengfu believes that the reorganization of enterprises is of great significance, which can not only quickly realize the protection of the main body, employment and taxation, but also has strong industrial linkage, and is an important indicator that reflects the achievements of a country's business-friendly environment construction.
In recent years, some enterprises have entered into reorganization procedures, some of which involve cross-border bankruptcy issues such as the restructuring of huge overseas debts and the judicial assistance procedures for cross-border bankruptcy cases under US law. Some companies have a multi-tier shareholding structure, usually with a holding company set up offshore, which involves extremely complex and specialized cross-border insolvency issues. However, China lacks a sound cross-border bankruptcy rule of law and professionals in this field, and mainland courts and bankruptcy practitioners (including lawyers, accountants, bankruptcy administrators, etc.) are unable to actively and effectively lead or even participate in cross-border bankruptcy proceedings or cooperate in cases.
In view of the above background, Zhu Zhengfu believes that it is necessary to attach great importance to the issue of cross-border bankruptcy, and recognize the importance of cross-border bankruptcy to the construction of market economy and foreign-related rule of law from the ideological roots and legislative essence. At the same time, we will actively promote the construction of the rule of law and judicial practice of cross-border bankruptcy, enhance the competitiveness of the business-friendly environment, and adapt to the requirements of the times when China implements a high level of opening up.
Zhu Zhengfu told the reporter of "Legal Person".The rules of cross-border bankruptcy need to be improved urgently, which is the consensus of the theoretical and practical circles in the process of revising the Enterprise Bankruptcy Law of the People's Republic of China in recent years. At the legislative level, the 2007 Enterprise Bankruptcy Law has only one provision (Article 5) that deals with cross-border insolvency. In terms of judicial practice, since the implementation of the Law, only 10 proceedings have been recognized and assisted overseas, and mainland courts have only recognized and assisted 6 overseas bankruptcy proceedings. This status quo is seriously mismatched with the size and status of China's economy, and obviously undermines economic sovereignty and the interests of creditors. On 14 May 2021, China established a mechanism for cooperation in cross-border bankruptcy cases between the Mainland and the Hong Kong Special Administrative Region, but the scope of the mechanism is limited, the implementation is insufficient, and it is far from meeting the actual needs of handling cross-border bankruptcy cases.
It is understood that since 2022, the World Bank has subversively reconstructed the global business-friendly environment assessment system, and included "cross-border bankruptcy" as an evaluation index in the field of "handling bankruptcy" to measure whether a country has established a good legal framework for cross-border bankruptcy and whether it recognizes and assists foreign bankruptcy proceedings and participates in cross-border bankruptcy cooperation. At present, 62 countries and jurisdictions have adopted the Model Law on Cross-border Insolvency (hereinafter referred to as the "Model Law") of the United Nations Commission on International Law (hereinafter referred to as the "Model Law"), which has become the best reference for countries to improve cross-border bankruptcy related legislation.
In this regard, Zhu Zhengfu suggested: First of all,Seize the valuable opportunity of the revision of the Enterprise Bankruptcy Law and actively benchmark against international practices or best practices. In the revision of the Enterprise Bankruptcy Law, we will benchmark the Model Law, provide for the cross-border bankruptcy system in the form of a special chapter, and strive to become the jurisdiction of the Model Law after this amendment, which will effectively improve the evaluation index of "handling bankruptcy" and bring China's cross-border bankruptcy legal system in line with the best international rules. Secondly,Attach importance to the cultivation of professionals in the field of cross-border bankruptcy, and lay a solid foundation for the construction of the rule of law for cross-border bankruptcy, effective participation in the governance of global cross-border bankruptcy rules, and active participation in and gradual leadership of cross-border bankruptcy cases of enterprises.
Edited by Qu Yang.
Editor-in-charge: Bai Kui.
Proofreading by Zhang Bo Zhang Xuehui.