香港清盤程序在內地的認可──兼議香港清盤人在內地的履職

Abstract

Mainland courts recognize Hong Kong liquidation procedures and Hong Kong liquidators perform duties in the Mainland as one of the important contents of the cross-border insolvency cooperation between the Mainland and Hong Kong. On May 14, 2021, the Supreme People's Court and the Government of the Hong Kong Special Administrative Region signed the "Minutes of Meeting of the Supreme People's Court and the Government of the Hong Kong Special Administrative Region on Mutual Recognition of and Assistance to Bankruptcy Proceedings between the Courts of the Mainland and of the Hong Kong Special Administrative Region" (hereinafter referred to as the "Minutes of Meeting"). In order to facilitate the implementation of the minutes, the Supreme People's Court issued the No. 15 [2021] of the Supreme People's Court "Opinions of the Supreme People's Court on Launching the Pilot Program of Recognition of and Assistance to Bankruptcy Proceedings in the Hong Kong Special Administrative Region" (hereinafter referred to as the "Pilot Opinions") on the same day. According to the "Minutes of Meetings" and the "Pilot Opinions", Hong Kong liquidators can apply to the Intermediate People's Courts in the three pilot regions of Shanghai, Xiamen and Shenzhen for recognition of the Hong Kong liquidation procedures; after the Mainland courts have recognized the Hong Kong liquidation procedures, they should also recognize the Hong Kong liquidators Therefore, Hong Kong liquidators can go to the Mainland to perform their duties.

The winding-up procedures in Hong Kong are divided into court-compulsory winding-up and company voluntary winding-up. Court-compulsory winding-up is further divided into general court winding-up, summary winding-up and winding-up with a regulatory order. Voluntary winding-up of a company includes two types: voluntary winding-up by members and voluntary winding-up by creditors. Among them, members' voluntary liquidation also includes general members' voluntary liquidation and difficult business voluntary liquidation.

A winding-up order is an order made by the court in compulsory winding-up, including provisional winding-up orders and winding-up orders. In Hong Kong law, it can be used as the applicable law. In the view of the mainland courts, a winding-up order can be used as an extraterritorial judgment. In certain circumstances, we can also regard it as conclusive evidence.

Liquidators in Hong Kong are divided into provisional liquidators and liquidators. Provisional liquidators include pre-order provisional liquidators and post-order provisional liquidators. Liquidators and provisional liquidators are both company representatives and managers of company affairs. At the same time, they can also apply to the court to become the owner of the company's property during compulsory winding-up proceedings in the court.

The approval of Hong Kong's winding-up procedures in the Mainland can be divided into two situations. One is that the three pilot areas of Shanghai, Xiamen and Shenzhen are reviewed and approved in accordance with the "Minutes of Meeting" and "Pilot Opinions". Second, in other areas without agreement, review in accordance with "Civil Procedure Law of the People's Republic of China", "Enterprise Bankruptcy Law of the People's Republic of China", "Minutes of the National Court Work Conference on Bankruptcy Trials" and other laws, judicial interpretations and relevant legal basis.

Mainland courts take a more conservative attitude towards recognizing the validity of extraterritorial insolvency proceedings, but their recognition of Hong Kong's insolvency proceedings is more lenient than other countries and regions. the Hong Kong courts believe that the winding-up order made by the Hong Kong courts should be regarded as having global effect. The Hong Kong courts' review of mainland insolvency proceedings are similar to their review of general extraterritorial insolvency proceedings. Hong Kong courts recognize the fact that Taiwan and Macau are part of China, and take into account the particularity of Taiwan.

Cross-border insolvency cooperation between the Mainland and Hong Kong should follow the four basic principles of "one country, two systems", "mutual respect", "full integrity" and "dealing with law". Regardless of whether it is based on the "Minutes of Meetings" and the "Pilot Opinions" or based on the basic theoretical and practical needs of cross-border insolvency cooperation, the local court still needs to conduct necessary review of the extraterritorial insolvency proceedings when it intent to recognize the other party's insolvency proceedings. There are four key aspects for mainland courts to review Hong Kong's winding-up procedures: First, whether the cross-border insolvency jurisdiction is reasonably exercised; Second, whether the winding-up procedures are legitimate; Third, whether there is a risk of harming the public interests of the mainland society in the winding-up procedures; Fourth, Whether the application for approval of the winding-up procedure is within the limitation period.

After the winding-up procedure is recognized by the mainland court, the identity of the Hong Kong liquidator will be recognized, so the Hong Kong liquidator can perform his duties in the mainland. When Hong Kong liquidators perform their duties in the Mainland, they are bound by both the laws of the place of conduct (Mainland Law) and their own personal laws (Hong Kong Law). Generally speaking, personal law should be used to judge qualifications, and territorial law should be used to judge the content of duty performance. According to the requirements of the Pilot Opinions, Hong Kong liquidators are double restricted from performing their duties in the Mainland, including improper performance of duties, and being subject to both territorial and personal laws.

The specific rights of a Hong Kong liquidator to perform duties in the Mainland include: the right to obtain the property account books and accounting books of the liquidated enterprise; the right to go to the industrial and commercial administration department to conduct a search; the right to receive the property of the liquidated enterprise; The right to apply for preservation of the property of the liquidated enterprise located in the Mainland; the right to evaluate and auction the property of the enterprise; carry out litigation on behalf of the liquidated enterprise in its own name; The right to make adjustments to the company's personnel and to guide the management of subsidiaries, etc.

The liquidator shall not damage the interests of the creditors of the Mainland subsidiary in performing his duties; shall not treat the Mainland creditors differently from the Hong Kong creditors; shall not harm the social and public interests of the Mainland; and shall not commit fraudulent acts. Circumstances in which the insolvency administrator or liquidator is considered to have improperly performed their duties mainly include： improper handling of procedures, such as failure to notify creditors in time, failure to hand in property in time, failure to submit financial reports in time, etc.; improper receipt, management or disposal of property; error in creditor's rights review; property Unfair distribution; inaction, such as failing to pay social security for employees; collusion with related parties to harm the interests of creditors; disclosing wrong information and making false statements; failing to comply with court orders in a timely manner, etc. If the liquidator improperly performs his duties and causes losses to creditors, debtors or the third parties, he will bear corresponding legal liabilities, including civil, administrative and criminal liabilities.

Liquidators generally have the obligation to notify creditors when they perform their duties in the Mainland; according to the actual needs of the case, they have the right to entrust others to manage the debtor's property or operate the debtor. If necessary (the administrator is not a legal professional institution), Can entrust others to litigate on their behalf; can reorganize the enterprise.

In terms of the methods for the construction of the cross-border duty performance system for Hong Kong liquidators, it can be considered that the Guangdong-Hong Kong-Macao Greater Bay Area should be the first to try it out, make breakthroughs from the innovation of external systems, and guide the innovation of the system by respecting the objective laws and using the correct methodology. In terms of specific system construction, we can consider: designate the insolvency administrator to provide assistance; give the insolvency administrator/liquidator easy access permission between different jurisdictions; establish a joint hearing system; Improve the system for cross-border property disposal; Build a multilateral information platform; Build a cross-border performance guarantee system for insolvency administrators/liquidators.

Date of Award	19 May 2023
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Chi Hin Peter CHAN (Supervisor)