Provisions on issues of applying the "PRC Enterprise Bankruptcy Law" (II)

Date:2012年12月20日 15:32

Provisions on issues of applying the "PRC Enterprise Bankruptcy Law" ( II)

PRC Supreme People's Court Notice
 

" Supreme People's Court on the application < PRC Enterprise Bankruptcy Law > Issues ( two ) " was the first 1586 meeting of the Judicial Committee of the Supreme Court July 29, 2013 , is hereby promulgated since 2013 9 implemented from April 16 .
 

Supreme People's Court

September 5, 2013
 

Supreme People's Court on Several Issues Applicable " PRC Enterprise Bankruptcy Law" ( II)

(Adopted at the 1586 meeting of the Supreme People's Court of the Judicial Committee July 29, 2013 )


According to the "PRC Enterprise Bankruptcy Law" , " Property Law " "Contract Law " and other relevant laws , combined with trial practice , identify the debtor's property -related legal issues apply to the People's Court on bankruptcy cases, the enactment of this provision .

The first addition to all of the debtor's money, in kind , the debtor may be legally entitled to monetary valuation and can legally transfer the debt, equity , intellectual property, with the property and interests in property usufruct , etc., the people's court shall be identified as the debtor's property .

Article 2 The following shall not be regarded as the property of the debtor's property :

( A ) the debtor based warehousing, storage , forwarding , distribution, loan , deposit , lease contracts or other legal relationships , such as possession, use another person's property ;

(B ) the debtor has not obtained the ownership of trading in retained ownership of the property ;

( C) the ownership exclusively the property of the State and shall not be transferable ;

(4) Other accordance with laws, administrative regulations do not belong to the debtor's property .

Article debtor has legally set a specific security interest in the property , the people's court should be recognized as the debtor's property .

Specific property of the debtor 's security interest in the remaining part of the realization of a security interest to destroy or later, available in the insolvency proceedings to settle the bankruptcy cost of debt interest and other bankruptcy claims .

Article by copies of the relevant share of the debtor to enjoy the ownership of common property or joint property ownership shared by the respective property rights , as well as total proceeds divided part of the property in accordance with law , the people's court shall be identified as the property of the debtor .

People's Court declare the debtor bankrupt liquidation , division of property belonging to a total of statutory subject matter . People's Court ruled that the debtor's reorganization or settlement, the common property should be divided in accordance with the provisions of Article 99 of the Property Law ; based reconciliation needs to be reformed or common property division , division manager of the request , the people's court shall be permitted .

By dividing total debt led to other co-owners of property damage arising as the other co-owners of beneficial debt settlement request , the people's court shall support .

Article after the relevant units bankruptcy application is accepted , the executive procedures for the debtor's property is not in accordance with Article 19 of the Enterprise Bankruptcy Law of the stay , the measures taken to implement the law should be corrected . Legally enforceable property turning the people's court should be recognized as the debtor's property .

Article 6 After accepting the application for bankruptcy , because the relevant stakeholders for possible human behavior or other reasons , the impact of the bankruptcy proceedings in accordance with law , the people's court accepts the bankruptcy application administrator can apply or ex officio , of all or part of the debtor take measures to preserve the property .

Article VII of the debtor's property preservation measures have been taken to the relevant units , after becoming aware of the people's court has ruled that the debtor's bankruptcy application is accepted , it shall promptly lift the debtor's property preservation measures in accordance with the provisions of Article 19 of the Enterprise Bankruptcy Law .

Article VIII of the People's Court accepted the bankruptcy petition to declare bankruptcy before the bankruptcy court rejected the application , or in accordance with the provisions of Article 108 of the Enterprise Bankruptcy Law decide to terminate the bankruptcy proceedings , it shall promptly notify the original protective measures have been taken and have been legally released preservation Unit measures to restore the original security measures in accordance with the relevant security overall .

In accordance with the law has been lifted protective measures to preserve or restore the unit said before no longer restore the people's court accepts the bankruptcy application shall not be released to the debtor's property preservation measures .

Managers filed pursuant to Article IX Article 31 of the Enterprise Bankruptcy Law and the provisions of Article 32 proceedings involving the debtor's request for revocation of the property -related behavior by a relative who returned to the debtor's property , the people's court shall support .

Managers due to the fault of the outstanding result in revocation of the debtor's property rights law improperly impaired creditors sue for compensation claims managers bear the responsibility for their losses, the people's court should be supported.

Article X of the debtor into bankruptcy procedures through administrative liquidation procedure , the starting point and the provisions of Article 31 of the Enterprise Bankruptcy Law of revocable act Article 32 , the date of revocation of administrative decisions made ​​by regulatory agencies .

After a forced liquidation of the debtor into bankruptcy proceedings , the Enterprise Bankruptcy Law Article 31 and Article 32 of the act may revoke the starting point for the People's Court accepted the application for compulsory liquidation date .

Article 11 The people 's court to revoke the debtor's property involved is obviously unreasonable price of transactions carried out at the request of the Manager , it shall be returned from buyers and sellers of property or proceeds acquired by the other party .

Due to the revocation of the transaction, the transferee should be returned to the debtor to pay the debt proceeds have been generated , the assignee of the request as beneficial debt settlement , the people's court shall support .

Article XII of the bankruptcy application accepted unmatured debt prepayment during the year before the debtor before the bankruptcy application acceptance has expired , the manager requesting the revocation of the settlement acts, the people 's court shall not support. However, the settlement behavior occurred within six months before the bankruptcy filing and acceptance debtor bankruptcy law , except Article first paragraph circumstances .

Article 13 bankruptcy application is accepted , the manager did not request accordance with the provisions of Article 31 of the Enterprise Bankruptcy Law revocation free transfer of the debtor's property , the transaction price is manifestly unreasonable , abandon claims act, creditors based on contract law seventy-fourth and other provisions of the proceedings , requesting revocation of the debtor 's property to recover the above acts and therefore included in the debtor's property , the people's court shall accept .

Range relative to the creditors who exercise the right of rescission defense beyond the claims of creditors , the people's court shall not support .

Article XIV of individual debtors to settle the property is set to its own security interests of the creditor's rights , the Manager in accordance with Article 32 of the Enterprise Bankruptcy Law provisions to nullify the people's court shall not support . However, when the value of the secured property debt settlement is less than the amount excluded claims .

Article XV of the debtor through litigation, arbitration , settlement of execution of individual creditors , the administrator in accordance with Article 32 of the Enterprise Bankruptcy Law provisions to nullify the people's court shall not support . However , other than the debtor and the creditor malicious collusion harm the interests of other creditors .

Article XVI of the following individual debtor to settle the creditors , the administrator based on Article 32 of the Enterprise Bankruptcy Law provisions to nullify the people's court shall not support :

( A ) the debtor to maintain basic production needs to pay water, electricity , etc. ;

( B) the debtor to pay labor compensation , personal injury compensation payments ;

(C ) the debtor 's property to benefit other individual settlement .

Article XVII managers sue for relief under Article 33 of the Enterprise Bankruptcy Law provisions , advocates are hidden, the transfer of property of the debtor's property to return the actual possessor , or advocate or acknowledge the debt the debtor fictitious debt untrue invalid and returned to the debtor's behavior property, the people's court should be supported.

Article XVIII Manager on behalf of the debtor pursuant to the Enterprise Bankruptcy Law of the provisions of Article 128 , the debtor 's legal representative and other directly responsible personnel involved in the debtor's property related to the presence of intentional or grossly negligent behavior caused the debtor's property sue loss , claim these people bear the responsibility for liability , the court should be supported.

Article XIX of the debtor to enjoy the external debt of the statute of limitations , interruption from the date of the people's court accepts an application for bankruptcy since .

Debtor without justification for its outstanding debt in a timely manner the rights expire , resulting in its external debt in bankruptcy filings over the previous year statute of limitations period is accepted, the people's court accepts the bankruptcy from the date of the application for re- calculation of the debt statute of limitations period .

Diershitiao Manager on behalf of the debtor filed a lawsuit to pay the investor advocates unfulfilled withdrawing the invested capital or return of principal and interest to the debtor in accordance with law , the investor to subscribe capital to pay the unexpired term of the articles of association or in violation of the obligation has been funded over the defense of the statute of limitations grounds , the people's court shall not support .

Manager in accordance with relevant provisions of the Act on behalf of the debtor filed a lawsuit claims the company's founder and has oversight contributed to fulfill the obligations of the shareholders directors , senior management, or to assist capital flight to other shareholders, directors, senior management, the actual control etc. , in violation of contribution obligation to shareholders or capital flight assume corresponding responsibility and property included in the debtor's property , the people's court shall support .

Article 21 applications received prior to the bankruptcy , creditors on the debtor's property following litigation filed bankruptcy case has not been concluded when the applications received , the people's court shall suspend the trial :

( A ) the debtor instead of the debtor directly advocate times its debt ;

(B ) the debtor's claim contributors , sponsors and funding to fulfill obligations has oversight shareholder directors, senior management, or to assist capital flight to other shareholders, directors, senior management, such as the actual controller does not directly contribute to its commitments real or withdrawing funding obligations ;

(C ) to the shareholders of the debtor and the debtor 's legal personality confused by serious advocate directly to its shareholders of the debtor to repay the debt owed ​​to its debtor ;

(D ) other property the debtor filed individual lawsuits settled .

After the debtor declared bankruptcy , according to the people's court shall make a judgment Article 44 of the Enterprise Bankruptcy Law provisions dismissed the claims of creditors. However, in the first instance to change its creditor claims , except as related to the recovery of the property included in the debtor's property .

Debtor before the bankruptcy declaration , the people's court according to Article XII of the Enterprise Bankruptcy Law or the provisions of Article 108 of the bankruptcy court rejected the application or termination of the insolvency proceedings , the trial of the suspension of the trial should resume the trial according to law.

Article 22 applications received prior to the bankruptcy , the creditors filed the provisions of the People's Court on the debtor's property listed in the first paragraph of Article 21 proceedings , the court has rendered an effective civil judgment or mediation is not yet finished , but the bankruptcy filing after acceptance, the relevant implementing acts shall be based on Article 19 of the enterprise Bankruptcy Law of the stay , the creditor shall apply to the relevant creditor reporting manager .

After accepting the application of Article 23 of the bankruptcy , the creditors filed the provisions of Article 21 proceedings listed in the first paragraph on the debtor's property to the people's court , people's court inadmissible.

Creditor or creditors 'meeting by the creditors' committee , the law requires the Manager to the times of the debtor , the debtor to recover investors and other property of the debtor , the manager unjustified refusal to recover , a meeting of creditors pursuant to the provisions of Article 22 of the Enterprise Bankruptcy Law , the applicant People's Court to replace the manager , the people's court shall support .

The Manager will not recover , individual creditors filed related litigation on behalf of all creditors , the debtor or the debtor's advocate times and other investors returned to the debtor or the debtor's property settlement or consolidation bankruptcy law apply , the people's court shall accept .

The following income debtor circumstances specified in Article 24 of the first paragraph of Article corporate bankruptcy law , the debtor's directors, supervisors and senior management personnel to obtain the use of authority , the people's court shall determine to Article 36 of the Enterprise Bankruptcy Law non- normal income requirements :

( A ) performance bonuses ;

( B) the general wages owed ​​employees under wage income obtained ;

(C ) Other non- regular income .

Debtor's directors, supervisors and senior management personnel who refuse to return above the debtor's property manager , the manager claims to be the return of these people , the people's court shall support .

Debtor's directors, supervisors and senior management personnel due to the return of the first paragraph ( a ) above, the claims section ( c) the formation of a non- normal income can be used as an ordinary bankruptcy claims settlement . Claims due to the return of the first paragraph ( b) of the formation of a non- normal income , according to the provisions of the Enterprise Bankruptcy Law Article 113 , paragraph 3 , part of the company in accordance with the calculation of the average wage arrears of wages as a settlement ; higher a part of the corporate average wage calculated as an ordinary bankruptcy claims can be settled .

Article 25 The Manager intends to settle the debt or through back guarantee pledge or lien , or the pledgee , lien agreement to pledge or lien discount debts , etc., conducted for the benefit of creditors have significant the impact of the disposition of property , it shall promptly report the creditors' committee . Creditors' committee is not established , the manager shall promptly report the people 's court.

Article 26 The right to exercise the right to recover based on the provisions of Article 38 of the Enterprise Bankruptcy Law , shall be the property of a conversion plan in bankruptcy or settlement agreement , the draft reorganization plan submitted to the administrator by the creditors' meeting before the vote. Human rights advocates in the said period to retrieve the relevant property shall bear delay in exercising the right to recover the costs associated with the increase .

Human rights in accordance with Article 27 of the Enterprise Bankruptcy Law Article 38 provisions related to the administrator to retrieve the property , the manager will not be recognized , the right person to sue the debtor for the defendant requested to exercise the right to get back to the people's court , the people's court shall accept .

Human rights legal instruments in force in accordance with the relevant people's court or arbitration body to the administrator to retrieve the property involved in the dispute , in order to become effective legal instrument error manager refused to exercise its right to recover the people's court shall not support .

Article 28 The right to exercise the right of not legally be paid back to the Manager related processing fees, custodial fees, fees on commission fees, agency fees, expenses related to the property manager refused to retrieve it , the people's court shall support .

Difficult to keep the property or not timely realizable value of the property will be severely derogatory Article 29 debtor in possession of perishable unclear ownership , etc., after the price change and escrow manager promptly changed the price, in respect of the rights of man becomes the exercise price of the right to recover the people's court should be supported.

Article 30 debtor in possession of the property of others is illegal transferred to a third party , according to the provisions of Article 106 of the Property Law has been acquired in good faith third party ownership of property , rights of indigenous people can not get back the property, the people's court shall, in accordance The following provisions:

( A ) the transfer of behavior accepted prior to bankruptcy filing , the original property damage due to the formation of human rights claims , as an ordinary bankruptcy claims settlement ;

(B ) the transfer of behavior accepted after the bankruptcy filing , because managers or personnel performing their duties led to the original right holder damages arising from debt , debt settlement as a co- benefit .

Article 31 debtor in possession of the property of others is illegal transferred to a third party , the third party debtor has paid the transfer price , but in accordance with the provisions of Article 106 of the Property Law without obtaining ownership of property , rights of indigenous people chase law back to the transfer of property , the debt has been paid by a third party arising from the consideration of the people's court shall, in accordance with the following provisions :

( A ) the transfer behavior of applications received prior to the bankruptcy , the bankruptcy settlement as an ordinary creditor ;

(B ) the transfer of behavior occurs after acceptance of an application for bankruptcy , debt settlement as a co- benefit .

Article 32 others possession of the debtor 's property is damaged or lost , so get insurance money, damages , compensatory matter has not been delivered to the debtor or the debtor's compensation matter Although it can be delivered to distinguish with the debtor's property rights argue back thereon to obtain insurance money, damages , compensation matter , the people's court shall support .

Insurance, compensation has been delivered to the debtor , or compensatory things have been delivered to the debtor and can not be distinguished with the debtor's property , the court shall deal with the following provisions:

( A ) property damage, loss occurred before the bankruptcy petition is accepted, property damage due to the formation of human rights claims , as an ordinary bankruptcy claims settlement ;

(B ) property damage, loss occurred after the bankruptcy petition is accepted, because managers or personnel performing their duties cause damage to rights holders of debt incurred , as a co- benefit of debt settlement .

Debtor in possession of another person's property is damaged or lost , did not get the appropriate insurance, compensation, compensation matter , or insurance, compensation for physical , material compensation is insufficient to cover part of their losses , the people 's court shall, in accordance with this paragraph regulations.

Article 33 managers or personnel in the course of performing their duties , intentionally or through gross negligence or improper transfer of the property of others caused by someone else's property is damaged or lost , causing damage to the debt incurred as a co- benefit obligations at any time by the debtor's property is insufficient to cover the settlement losses, human rights advocates to the manager or personnel assume additional liability , the people's court shall support .

After the above-mentioned debt as total debt interest paid by the debtor's property at any time , the administrator or the creditors due to improper execution of duties related to the debtor's property to reduce its losses to sue , advocates manager or personnel bear the corresponding liability , the court should I support.

Article 34 Where the subject matter of the contract of sale the parties agreed to retain ownership in the contract , not in front of the subject matter of the transfer of ownership to the buyer according to the law , the bankruptcy of one of the parties , the contract for the sale are two sides were not fulfilled contract , the manager has rights based on enterprise Bankruptcy Law, the provisions of Article 18 decide to terminate or continue the contract .

Article 35 The seller's bankruptcy, its managers decided to continue to perform the contract for the sale of retention of title , the buyer shall pay the price or other obligations in accordance with the original contract for the sale agreement.

Failure to pay the price or buyer about fulfilled other obligations , or sell the subject matter , the pledgor or other improper disposal , causing damage to the seller , the seller claims manager to retrieve the subject matter of law , the people's court shall support . However , the buyer has to pay the total price of the subject matter of 75% or more , or a third party , other than the subject matter in good faith to obtain ownership or other property rights .

Due to failure to retrieve the second paragraph of this article the subject matter , the seller claims administrator by law to continue to pay the price the buyer , fulfilled other obligations , and bear the corresponding liability , the court should be supported.

Article 36 The seller bankruptcy, its managers decided to lift the title reserved for the sale , and according to Article 17 of the Law on Enterprise Bankruptcy buyer requirements traded him to deliver the subject matter , the people's court shall support .

There is no buyer for its Failure to pay the price , or approximately fulfilled other obligations , or sell the subject matter , the pledgor or other improper disposal of the defense case , the people's court shall not support .

Buyer to fulfill contractual obligations in accordance with law and in accordance with the first paragraph of the seller to deliver the subject matter of the trading manager , the buyer has paid the price losses arising from claims of benefits as debt settlement . However , breach of contract, the buyer , the seller claims these claims as general manager of bankruptcy claims settlement , the people's court shall support .

Article 37 The buyer bankruptcy, its managers decided to continue to perform the contract for the sale of title retention period , as agreed in the original contract for the sale or the buyer to pay the price to fulfill other obligations deemed to expire at the time of the bankruptcy application accepted, buy by the manager who shall promptly pay the price to the seller or fulfill other obligations .

The buyer does not promptly pay the price without justification manager or fulfilled other obligations , or sell the subject matter , the pledgor or other improper disposal , causing damage to the seller , the seller based on Article 134 of the Contract Law and other provisions advocated retrieve subject matter , the people's court shall support . However , the buyer has to pay the total price of the subject matter of 75% or more , or a third party , other than the subject matter in good faith to obtain ownership or other property rights .

Due to failure to retrieve the second paragraph of this article the subject matter , the seller claims the buyer to continue to pay the price in accordance with law , fulfilled other obligations , and bear the corresponding liability , the court should be supported. Not because of the buyer to pay the price or other obligations are not fulfilled , and the buyer Manager will sell the subject matter , the pledgor or other improper disposal of lead to damage to the debt incurred seller , the seller claims of benefits as a liability settled , the people's court should be supported.

Article 38 The buyer bankruptcy, its managers decided to lift the title reserved for the sale , the seller in accordance with Article 38 of the Enterprise Bankruptcy Law provisions dealing advocate retrieve subject matter , the people's court shall support .

The seller trading retrieve the subject matter , the buyer returned the seller claims administrator has to pay the price , the people's court shall support . The subject matter of the value of the retrieved significantly reduce losses to the seller , the seller from the buyer after the purchase price has been paid in priority to the deductible , the remaining part of the return to the buyer ; insufficient for the buyer has to pay the price compensate the seller impairment losses form the subject matter of the value of claims , the seller claims of benefits as a liability settled , the people's court should be supported.

Article 39 of the seller based on Article 39 of the Enterprise Bankruptcy Law provisions , by notifying the carrier or the actual possessor to suspend the carriage , return the goods , change the destination , or other goods to the consignee , etc., on the the subject matter in the way advocated shipped right back but failed to achieve , or goods below the manager before the manager claims the subject matter transported on the way back , after trading in the subject matter to reach the manager , the seller claims to the Manager back , the manager should be permitted .

The seller of the subject matter of the outstanding transported back in time the right way , the subject matter of the trading manager arrived at the ship on the way the subject matter of the exercise of the right to recover , the manager should not be permitted to the administrator .

Article 40 of the debtor during the reorganization , the rights of people who claim the right to lawful possession of property of the debtor , the two sides agreed in advance does not meet the conditions , the people's court shall not support . However, due to self- management administrator or debtor violates the contract , may result in material being transferred back , damage, loss or significant reduction in the value of the exception .

Article 41 The right of a creditor to offset the exercise of the Enterprise Bankruptcy Law in accordance with the provisions of Article 40 , it shall be made ​​to offset the claims administrator .

The Manager shall take the initiative against the debtor and the creditor mutual obligations , but offset by the benefit of the debtor's property except to make .

Article 42 managers received debt creditor claims against the notice , upon examination without objection, offset from the date of receipt of the notice from the manager to take effect.

Manager of the offsetting claims have objections shall, within the agreed time limit or dissent from the date of receipt of the notification of claims against the debt within three months the people's court proceedings. Unjustified filed late , the people's court shall not support .

People's Court dismissed against invalid claims filed manager , which is offset from the manager of the debt claim from the date of receipt of notice of offsetting effect.

Article 43 The creditors claim against the Manager with the following reasons for the challenge , the people's court shall not support :

When ( a ) bankruptcy application is accepted , the debt owed ​​by the debtor to the creditor has not expired ;

(B ) bankruptcy application is accepted , the debt owed ​​to the creditor on the debtor has not expired ;

(C ) the subject matter of the mutual obligations of both types, different quality.

Article 44 bankruptcy within six months prior to application acceptance , the debtor has the second case the first paragraph of Article corporate bankruptcy law, the debtor and the creditor to offset the way the individual to individual creditors settled their debts against companies belonging bankruptcy Law Article 40 (b ) , one of the circumstances specified in ( c) , the manager at the date of acceptance of the application for bankruptcy within three months from the People's Court proceedings , claims the offset is invalid , the people's court shall support .

Claims against Article 45 of the Enterprise Bankruptcy Law Article 40 shall be offset against the creditors listed in the case , advocates for its specific property of the debtor 's creditors entitled to priority claim , and the debtor does not enjoy the right of priority claim debtor managers to offset the presence of the Enterprise Bankruptcy Law Article 40 to challenge the case , the people 's court shall not support. However , to offset the debt is greater than the creditor priority claim , other than property values ​​.

Article 46 The shareholders claim the debtor and the debtor following the debt off its debt owed ​​to the debtor to challenge the managers , the people's court shall support :

( A ) the debtor in default of payment to shareholders or invested capital flight debtor debts owed by the debtor ;

(B ) the debtor's shareholders or the abuse of shareholders' rights association harm the interests of the debtor company debts incurred .

Article 47 The People's Court accepted the application for bankruptcy , the debtor filed a civil case the parties shall be based on the provisions of Article 21 of the Enterprise Bankruptcy Law , under the jurisdiction of the people's court accepts the bankruptcy application .

Civil cases of first instance of the debtor 's bankruptcy petition the People's Court accepted jurisdiction , can be based on Article 38 of the Civil Procedure Law , the higher people's court arraignment , the higher people's court or submitted after the approval of the people's courts at lower levels .

The people's court accepts the bankruptcy application , such as the debtor's maritime disputes , patent disputes , the stock market triggered by false representation disputes and other civil compensation case can not exercise jurisdiction can be based on Article 37 of the Civil Procedure Law stipulates that the the higher people's court designated jurisdiction.

Article 48 before the implementation of the provisions relating to corporate bankruptcy Court issued judicial interpretation is inconsistent with the provisions from the date of implementation of this provision is no longer applicable .

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