A Study On Judicial Assistance In Insolvency Between The Mainland And Hong Kong

The Minutes of Talks between the Supreme People’s Court and the Government of the Hong Kong Special Administrative Region on Mutual Recognition and Assistance of Insolvency Proceedings by the Courts of the Mainland and the Hong Kong Special Administrative Region(hereinafter referred to as the "Minutes of Talks")and the Opinions on the Pilot Project on Recognition and Assistance of Insolvency Proceedings in the Hong Kong Special Administrative Region(hereinafter referred to as the "Pilot Opinions")have adopted the UN UNCITRAL Model Law on Cross-Border Insolvency(hereinafter referred to as the Model Law)and the EU Insolvency Regulation,which are influential in the international arena in amending the universalist theory and the rules of review in the place of main interest,to provide for the common issues of judicial assistance in cross-border insolvency,and to adapt them locally to our national conditions.Therefore,the Minutes of Talks and the Pilot Opinions are not only a major breakthrough in cross-border judicial assistance in bankruptcy between the Mainland and Hong Kong,but also an important inspiration and reference for the establishment of an international cross-border judicial assistance in bankruptcy system in China in the future.Taking the Minutes of the Talks and the Pilot Opinions as the starting point,this article examines the legal issues of cross-border judicial assistance in insolvency between the Mainland and Hong Kong in four parts.The first part takes the Minutes of Talks and the Pilot Opinions as the entry point to analyze the breakthroughs and developments brought by the two documents for cross-border judicial assistance in bankruptcy between the Mainland and Hong Kong,and analyzes the problems faced by the Mainland and Hong Kong in terms of ambiguous public policy exceptions and the lack of coordination mechanisms for cross-border parallel bankruptcy proceedings and communication and cooperation mechanisms between the two places in light of the current judicial practice.Through the analysis of the causes of the problems,the second part concludes that the problems of cross-border judicial assistance in bankruptcy between the Mainland and Hong Kong are due to the lack of general principles and the lack of specialized legislation.The principle of public interest retention and the principle of fair treatment of the interests of domestic and foreign creditors,as general principles that should be adhered to in cross-border judicial assistance in bankruptcy,are not implemented or even missing in the rules of cross-border judicial assistance in bankruptcy between the Mainland and Hong Kong,resulting in difficulties in the application of public policy exceptions in practice.Although the Mainland and Hong Kong have reached a consensus in the field of cross-border judicial assistance in bankruptcy,in the formulation of specific rules,the Mainland only establishes the rules by means of normative legal documents,while Hong Kong only clarifies the application paradigm by means of promulgating the Practical Guide.In fact,there is still a lack of guidelines for specialized cooperation arrangements between the Mainland and Hong Kong,which makes the creation of some procedures obstructive and makes it difficult for the two places to cooperate in depth in judicial practice.In the third part,the issue of cross-border judicial assistance in insolvency between the Mainland and Hong Kong is studied.Through the review of the international experience of cross-border insolvency judicial assistance system,the feasibility of its application in the field of cross-border insolvency judicial assistance between the Mainland and Hong Kong is explored to provide a path for the improvement of cross-border insolvency judicial assistance between the Mainland and Hong Kong.Judicial assistance in cross-border insolvency between the Mainland and Hong Kong should be arranged in the form of special arrangements,establishing the basic framework of primary and secondary assistance models and flexibly adopting primary and secondary assistance procedures as relief measures.In the improvement of the specific rules,by drawing on the above-mentioned mature international experience and taking into account the special national conditions and practical needs of "one country,two systems" in the Mainland and Hong Kong,provisions for the protection of interests of stakeholders should be improved,a coordination mechanism for parallel bankruptcy proceedings and a communication and cooperation mechanism between the two places should be established.Part Ⅳ highlights the value of cross-border judicial assistance in insolvency between the Mainland and Hong Kong for the establishment of an international cross-border judicial assistance in insolvency system in China.It affirms the value of cross-border judicial assistance in insolvency between the Mainland and Hong Kong from two perspectives: promoting the convergence of inter-regional and international cross-border judicial assistance in granting insolvency and following the development trend of cross-border judicial assistance in insolvency theory internationally,and international cross-border judicial assistance in insolvency should learn from its prudent and robust development trend and jurisdictional review standards,among other specifics.However,the relevant provisions of cross-border judicial assistance in insolvency between the Mainland and Hong Kong should not be completely transposed to the international cross-border judicial assistance in insolvency system,and the characteristics of in-depth cooperation between the Mainland and Hong Kong under "one country,two systems" should be recognized,combined with the actual needs of international cross-border insolvency focusing more on the protection of domestic creditors,and the establishment of a "two-segment,two-member system".The mechanism of cross-border judicial assistance in insolvency of "two paragraphs and two elements" should be established and the specific rules should be improved under this mechanism.