Cross-border insolvency: concept and methods of legal regulation

Volume 6, Number 2, 2021, P. 179–189

[ JURIDICAL SCIENCES ]

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Abstract:

As a formulation of a scientific problem, attention is paid to the insufficient level of scientific elaboration of legal issues arising in cross-border insolvency in the domestic doctrine. Discussion issues remain about the definition of the main (meaning-forming) concepts of cross-border insolvency — the doctrine of “main”, “single”, “parallel” and “secondary proceedings”, cross-border groups of companies, lex concursus, the center of main interests. During the preparation of the article, general scientific research methods were used, as well as special scientific methods of jurisprudence. An overview of the use of the term “cross-border insolvency” in Russian legislation is made and the main lexical features of its use are revealed — there is no legal definition of the concept, the use is mostly episodic, and a detailed system of its main features has not been established. Attention is drawn to the ambiguity of the use of this term in foreign legal order. The main approaches to the definition of the concept of «cross-border insolvency» in Russian legal science («the concept of legal relations», «the concept of legal norms», «the concept of insolvency of transnational corporations») are outlined. The question of the need to develop the concept of «cross-border insolvency» from the point of view of the «concept of a legal fact», as well as identifying the economic essence and legal form of insolvency, complicated by a foreign element, has been updated. The main models of legal regulation of the corresponding relations are considered: the method of single production, the method of parallel territorial production and modified models. It is recognized that in modern conditions of market turnover, the use of modified models can be considered optimal.

Keywords:

bankruptcy law, private international law, bankruptcy, cross-border insolvency, legal fact

Author:

Aleksandr A. Pakharukov, Cand. Sci. (Jurisprudence), Associate Professor, Head of Jurisprudence Department, Irkutsk National Research Technical University, Irkutsk, Russia

For citation:

Pakharukov A.A. (2021) Cross-border insolvency: concept and methods of legal regulation. Sotsial’naya
kompetentnost’ = Social Competence. Vol. 6. No. 2. P. 179–189. (In Russ.)

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