基础法律英语辅导热招
您的位置:外语教育网 > 法律英语 > 英文法规 > 正文

最高人民法院《关于审理企业破产案件若干问题的规定》 Several Issues on Trial of Enterprise Bankruptcy Cases Provisions

2006-05-13 11:22   我要纠错 | 打印 | 收藏 | | |

法释[2002]23号

(Promulgated by the Supreme People's Court on 30 July 2002 and effective as of 1 September 2002.)

颁布日期:20020730  实施日期:20020901  颁布单位:最高人民法院

  The following Provisions have been formulated in order to correctly apply the PRC State Enterprise Bankruptcy Law (Trial Implementation) (the Enterprise Bankruptcy Law) and the PRC Civil Procedure Law (the Civil Procedure Law) and regulate the trial of enterprise bankruptcy cases, in the light of the actual circumstances encountered by people's courts in such trials.

  1. Jurisdiction Over Enterprise Bankruptcy Cases

  Article 1 The people's court of the place where the debtor is domiciled shall have jurisdiction over the enterprise bankruptcy case. The phrase “place where the debtor is domiciled” means the place where the debtor's main office is located. If the debtor does not have an office, the people's court of the place where it is registered shall have jurisdiction.

  Article 2 In general, bankruptcy cases involving enterprises the registration of which was approved by administrations for industry and commerce of counties or of county level municipalities or districts come under the jurisdiction of basic-level people's courts.

  In general, bankruptcy cases involving enterprises the registration of which was approved by administrations for industry and commerce at or above the prefectural or prefectural-level municipality level come under the jurisdiction of intermediate people's courts.

  Bankruptcy cases involving enterprises restructured under State plans come under the jurisdiction of intermediate people's courts.

  Article 3 The trial by higher level people's courts of enterprise bankruptcy cases under the jurisdiction of lower level people's courts, the transfer of enterprise bankruptcy cases under the jurisdiction of higher level people's courts to lower level people's courts for trial and the transfer of enterprise bankruptcy cases under the jurisdiction of lower level people's courts that such courts need to transfer to higher level people's courts for trial shall be handled in accordance with Article 39 of the Civil Procedure Law. Where regional jurisdiction over certain enterprise bankruptcy cases at the level of a province, autonomous region or municipality directly under the central government requires adjustment due to special circumstances, the approval of the people's court that is the superior of both people's courts in question shall be required.

  2. Bankruptcy Petitions and Acceptance

  Article 4 Debtors that file a petition for bankruptcy or against which a bankruptcy petition is filed shall have legal person status. Enterprises without legal person status, sole traders, partnerships and rural business contractors do not qualify to be the subject of a bankruptcy case.

  Article 5 When a State-owned enterprise files a petition for bankruptcy with a people's court, it shall submit a document from the higher level department in charge of the enterprise consenting to its bankruptcy. Other enterprises shall submit a document from their founder or shareholders' meeting deciding on the enterprise's bankruptcy.

  Article 6 When a debtor files a petition for bankruptcy, it shall submit the following materials to the people's court:

  (1) a written bankruptcy petition;

  (2) proof of the enterprise's qualifications to be the subject of the case;

  (3) a list containing the names of the legal representative and the main persons in charge;

  (4) information on the enterprise's staff and workers and the contingency plan for the settlement thereof;

  (5) a written explanation of the enterprise's losses accompanied by an audited report;

  (6) a detailed list of the enterprise's assets as at the bankruptcy petition date, including tangible assets, intangible assets and the enterprise's investments, etc.;

  (7) detailed information on the accounts opened by the enterprise with financial institutions, including account opening examination and approval materials, account numbers, funds, etc.;

  (8) statement of the enterprise's claims listing the names and domiciles of the enterprise's debtors, the amounts of the debts, the times such debts arose and information on reminders and repayment, etc.;

  (9) statement of the enterprise's debts listing the names and domiciles of the enterprise's creditors, the amounts of the claims, the times such claims arose, etc.;

  (10) information on the security involving the enterprise;

  (11) information on the legal actions in which the enterprise is already involved; and

  (12) other materials the submission of which the people's court considers necessary.

  Article 7 When a creditor files a petition for the bankruptcy of a debtor, he shall submit the following materials to the people's court:

  (1) the facts on and proof of the occurrence of the claim;

  (2) the nature and amount of the claim and, a statement as to whether or not the claim is secured, accompanied by supporting documentation; and

  (3) proof of the debtor's insolvency.

  Article 8 When a creditor files a petition for the bankruptcy of a debtor, the people's court may notify the debtor to verify the following matters:

  (1) the authenticity of the claim;

  (2) the proportion of the due debts that the debtor is unable to discharge accounted for by the claim; and

  (3) whether the debtor is insolvent.

  Article 9 If a debtor challenges the claim of a creditor that filed a petition for its bankruptcy and the people's court sustains such challenge, it shall notify the creditor to first institute a civil action and shall not accept the bankruptcy petition.

  Article 10 Within seven days after receiving a bankruptcy petition, the people's court shall decide whether to place the case on the docket. If the materials submitted by the bankruptcy petitioner require correction or supplementation, the people's court may order the petitioner to correct or supplement the same within a specified period of time. If the materials are corrected or supplemented within the specified period of time, the people's court shall render its decision on whether or not to place the case on the docket within seven days after the date of receipt of the corrected or supplemented materials. If the petitioner fails to correct or supplement the materials within the specified period of time, the petitioner shall be deemed to have withdrawn the petition.

  If the people's court decides to accept an enterprise bankruptcy case, it shall prepare a notice of case acceptance and serve the same upon the petitioner and the debtor. The date of the notice shall be the date of acceptance of the bankruptcy case.

  Article 11 The bankruptcy petitioner may apply to withdraw the bankruptcy petition before the people's court has rendered its decision on whether to accept the enterprise bankruptcy case.

  If the people's court permits the petitioner to withdraw the bankruptcy petition, the expenses incurred before the withdrawal of the bankruptcy petition shall be borne by the bankruptcy petitioner.

  Article 12 The people's court shall not accept a bankruptcy petition if, after examination, it discovers that:

  (1) the debtor has concealed or transferred property, etc. and has filed the petition for bankruptcy in order to evade its debts; or

  (2) the creditor filed the bankruptcy petition in order to damage the debtor's goodwill, with the aim of disrupting fair competition.

  Article 13 If the people's court rejects a bankruptcy petition, it shall issue a ruling.

  If the bankruptcy petitioner is dissatisfied with the ruling to reject the bankruptcy petition, the petitioner may appeal to the people's court at the next higher level within 10 days after the date of service of the ruling.

  Article 14 If the people's court discovers, after accepting an enterprise bankruptcy case, that such case does not comply with the conditions for acceptance specified in laws or that either of the circumstances specified in Article 12 hereof exists, it shall issue a ruling dismissing the bankruptcy petition.

  If the people's court discovers, after accepting the bankruptcy petition of a debtor, that the whereabouts of a large amount of the debtor's property are unknown and the debtor fails to reasonably account for the disappearance of the same, it shall issue a ruling dismissing the bankruptcy petition.

  If the bankruptcy petitioner is dissatisfied with the ruling to dismiss the bankruptcy petition, the petitioner may appeal to the people's court at the next higher level within 10 days after the date of service of the ruling.

  Article 15 Once a people's court has decided to accept an enterprise bankruptcy case, it shall organize a collegiate bench and complete the tasks set forth below within 10 days:

  (1) notify the bankruptcy petitioner and respondent in writing concerning the composition of the collegiate bench and post an enterprise bankruptcy acceptance announcement on the court bulletin board, which announcement shall specify the bankruptcy petition acceptance date, the name of the debtor, the time limit and place for filing claims, the legal consequences arising from the failure to file claims within the time limit and the date and venue of the first creditors' meeting;

  (2) post a notice on the premises of the debtor's enterprise requiring due protection of the enterprise property, prohibiting the unauthorized disposal of the enterprise's account books, documents, information and seals and prohibiting the concealment, unauthorized distribution, transfer or sale of enterprise property;

  (3) notify the debtor to promptly cease the discharging of its debts and prohibit it from expending any moneys without the permission of the people's court; and

  (4) notify the debtor's banks to halt the debtor's settlement activities and prohibit them from debiting any of the debtor's funds to set off debts unless given permission to do so by the people's court.

  Article 16 After accepting an enterprise bankruptcy case instituted by a creditor, the people's court shall notify the debtor to submit to the people's court within 15 days relevant accounting statements, lists of claims and liabilities, a list of the enterprise's assets and other information the submission of which the people's court considers necessary.

  Article 17 In addition to notifying known creditors in accordance with Article 9 of the Enterprise Bankruptcy Law, the people's court shall, after accepting an enterprise bankruptcy case, publish an announcement in influential national and local newspapers within 30 days, the content of which shall be identical to that specified in Item (1) of Article 15 hereof.

  Article 18 In addition to promptly proceeding to a declaration of bankruptcy and establishing a liquidation committee, the people's court may, after accepting an enterprise bankruptcy case, establish an enterprise supervisory committee if the enterprise's original management organization is unable to perform its management duties and responsibilities normally. Members of the enterprise supervisory committee shall be selected from the higher level department in charge of the enterprise or shareholders' meeting representatives, the enterprise's original management personnel and major creditors. In addition, accountants, lawyers and persons from other such intermediary institutions may be engaged to participate in the supervisory committee. The enterprise supervisory committee shall chiefly be responsible for handling the following matters:

  (1) itemizing and safeguarding the enterprise's property;

  (2) verifying the enterprise's claims;

  (3) carrying out the business activities required in the interest of the enterprise;

  (4) making the necessary expenditures permitted by the people's court; and

  (5) other tasks permitted by the people's court.

  The enterprise supervisory committee shall be accountable to, and subject to the guidance and supervision of, the people's court.

  Article 19 After the people's court accepts an enterprise bankruptcy case, any other civil dispute case still at the stage of first instance in which the debtor is named as the plaintiff shall be transferred by the people's court that accepted the suit to the people's court that accepted the bankruptcy case. The people's court that accepted the suit shall continue to try the same in the event that such a case has progressed to the second instance.

  Article 20 After the people's court accepts an enterprise bankruptcy case, all other civil enforcement procedures against the property of the debtor shall be stayed.

  Other debt dispute cases in which the debtor is named as the defendant shall, depending on the different circumstances set forth below, be handled as follows:

  (1) if the trial of the case has been completed but enforcement remains pending, the enforcement shall be stayed and the creditor shall, on the strength of the effective legal document, file his claim with the people's court that accepted the bankruptcy case;

  (2) if the trial of the case has not been completed and there are no other defendants or intervenors without independent right of claim, the proceedings shall be stayed and the creditor shall file his claim with the people's court that accepted the bankruptcy case; the proceedings shall be concluded upon the enterprise being declared bankrupt;

  (3) if the trial of the case has not been completed and there are other defendants or intervenors without independent right of claim, the proceedings shall be stayed and the creditor shall file his claim with the people's court that accepted the bankruptcy case; the trial of the case shall resume upon conclusion of the bankruptcy procedure;

  (4) the trial of debt dispute cases in which the debtor is an accessory debtor shall continue.

  3. Filing of Claims

  Article 21 When filing claims, creditors shall submit proof of their claims and legally valid proofs of identity. Persons acting as agents in the filing of claims shall submit valid proof of the identity of their principals, powers of attorney and proofs of claim.

  If a filed claim is secured, evidence of the security shall be submitted.

  Article 22 When the people's court registers filed claims, it shall record the creditor's name, domicile and bank, the amount of the filed claim, the evidence of the filed claim, details on security, the filing date, the contact method and other necessary information.

  If a liquidation committee has been established, the afore-mentioned claim registration shall be carried out by the liquidation committee.

  Article 23 If one or more joint and several debtors go bankrupt, the creditor may exercise his rights in respect of the entire claim, and file the entire claim, against the said debtor(s) or against all the debtors. If the creditor fails to file his claim, the other joint and several debtors may file a claim in respect of a future debt that they may be required to bear.

  Article 24 A creditor that failed to file his claim within the statutory time limit may file his claim with the liquidation committee before the distribution of the property available in the bankruptcy if he is affected by circumstances specified in Article 76 of the Civil Procedure Law. The liquidation committee shall be responsible for examining the claim that such creditor filed and the people's court shall examine and confirm the same. If the creditors‘meeting objects to the people's court's consent to the said creditor's participation in the distribution of the property available in the bankruptcy, it may apply to the people's court for reconsideration.

  4. Bankruptcy Settlement and Reorganization of Bankruptcy Enterprises

  Article 25 After the people's court accepts an enterprise bankruptcy case and before the bankruptcy procedure is concluded, the debtor may apply to the people's court for mediation. While trying a bankruptcy case, the people's court may, depending on the specific circumstances of the creditor and debtor, propose a settlement to the parties.

  If the creditors' meeting and the debtor reach a settlement agreement and the people's court rules to approve such agreement before the people's court has issued a bankruptcy declaration ruling, the people's court shall announce the staying of the bankruptcy procedure.

  If the creditors' meeting and the debtor reach a settlement agreement and the people's court rules to approve such agreement after the people's court has ruled to declare the debtor bankrupt, the people's court shall rule to stay enforcement of the bankruptcy declaration ruling and announce the staying of the bankruptcy procedure.

  Article 26 If the debtor fails to discharge all of its debts in accordance with the terms of the settlement agreement, the concerned creditors may apply to the people's court for enforcement.

  Article 27 If the debtor fails or is unable to perform the settlement agreement, the people's court shall, upon application by the creditor, rule to resume the bankruptcy procedure. If the settlement agreement was reached prior to the bankruptcy declaration, the people's court shall simultaneously rule to declare the debtor bankrupt when ruling to resume the bankruptcy procedure.

  Article 28 If the bankruptcy petition against an enterprise was filed by a creditor and the enterprise is a State-owned enterprise, the higher level department in charge of such enterprise may apply for reorganization of the same pursuant to Part Four of the Enterprise Bankruptcy Law. An application for reorganization shall be submitted prior to the debtor being declared bankrupt.

  If the enterprise is not subject to a higher level department in charge, the enterprise's shareholders' meeting may pass a resolution and apply for reorganization of the enterprise in the name of the shareholders' meeting. The reorganization shall be undertaken by persons designated by the shareholders' meeting.

  Article 29 During the reorganization, the higher level department in charge of the enterprise or the persons responsible for implementing the reorganization program shall periodically report on the reorganization and the implementation of the settlement agreement to the creditors' meeting and the people's court.

  Article 30 During the reorganization, any enforcement against the debtor's property shall continue to be governed by Article 11 of the Enterprise Bankruptcy Law.

  5. Bankruptcy Declaration

  Article 31 For the purposes of the first paragraph of Article 3 of the Enterprise Bankruptcy Law, the word “insolvent” means that:

  (1) the time limit for performance of the obligation has expired; and

  (2) the debtor manifestly lacks the capability to discharge the debt.

  If the debtor has ceased to discharge its due debts and such state persists, it may, in the absence of evidence to the contrary, be deemed to be “insolvent”。

  Article 32 After accepting a debtor bankruptcy case, the people's court shall rule to declare the debtor bankrupt if:

  (1) the debtor is incapable of discharging its debts and has failed to reach a settlement agreement with the creditors;

  (2) the debtor fails to or is unable to perform the settlement agreement;

  (3) the debtor is characterized by any of the circumstances specified in Article 21 of the Enterprise Bankruptcy Law during the reorganization period; or

  (4) the debtor is characterized by the circumstance specified in the second paragraph of Article 22 of the Enterprise Bankruptcy Law after the expiration of the reorganization period.

  The declaration of the bankruptcy of the debtor shall be conducted publicly. If the bankruptcy petition was filed by a creditor, the debtor shall, when its bankruptcy is declared, be notified to appear in court.

  Article 33 The debtor shall cease its production and business activities from the date of the bankruptcy declaration. If, in the interest of the creditors, it is truly necessary to continue production and operations, the permission of the people's court shall be required.

  Article 34 After declaring the debtor bankrupt, the people's court shall notify the debtor's bank(s) to limit access to the debtor's bank accounts to the liquidation committee. When notifying the bank(s), the people's court shall attach the bankruptcy declaration ruling to such notice.

  Article 35 After ruling to declare the debtor bankrupt, the people's court shall issue an announcement that shall specify information on the debtor's losses, the status of its assets and liabilities, the date of the bankruptcy declaration, the grounds and legal basis for the bankruptcy declaration, the protection accorded to the debtor's property, account books, documents, information and seals, etc.

  Article 36 If, after an enterprise has been declared bankrupt, its property is placed under seal, impounded or frozen in the course of another civil action, the people's court that accepted the bankruptcy case shall promptly notify the people's court that imposed the sealing, impounding or freezing to lift the same and to carry out transfer procedures with the people's court that accepted the bankruptcy case.

  Article 37 After an enterprise has been declared bankrupt, the people's court shall designate the personnel who are required to stay in place. The bankrupt enterprise's legal representative, financial and accounting personnel and property custodians must stay in place.

  Article 38 After the bankruptcy declaration, if a creditor or the debtor is dissatisfied with the bankruptcy declaration, he/it may lodge an appeal with the people's court at the next higher level within 10 days after the date the people's court declared the enterprise bankrupt. The people's court at the next higher level shall organize a collegiate bench to hear the appeal and such bench shall render its ruling within 30 days.

  6. Creditors' Meeting

  Article 39 The creditors' meeting shall be comprised of those creditors that filed claims.

  The chairman of the creditors' meeting shall be designated by the people's court from among the creditors with voting rights. When necessary, the people's court may designate several chairmen of the creditors' meeting to form a chairmen's committee of the creditors' meeting.

  The refusal by a minority of the creditors to participate in the creditors' meeting shall not affect the convening of meetings. However, the creditors' meeting may not adopt resolutions that deny such creditors the opportunity to obtain repayment from the property available in the bankruptcy or that are detrimental to their obtaining repayment.

  Article 40 The first creditors' meeting shall be convened after the lapse of three months from the announcement of the people's court's acceptance of the bankruptcy case. The creditors' meeting may not be cancelled on the grounds that the repayment rate on general claims is zero, unless the debtor's property is insufficient to cover the bankruptcy expenses and the bankruptcy procedure is concluded early.

  Article 41 The first creditors' meeting shall be convened and presided over by the people's court. In addition to completing the tasks specified in Article 17 hereof, the people's court shall duly make the following preparations:

  (1) draft the agenda of the first creditors' meeting;

  (2) issue a notice to the debtor's legal representative or person in charge requiring him to be present at the meeting;

  (3) issue a notice to the debtor's higher level department in charge, founder or shareholders' meeting representative requesting that it/he appoint someone to attend the meeting as a non-voting participant;

  (4) notify the members of the liquidation committee to attend the meeting as non-voting participants;

  (5) notify the auditors and appraisers to participate in the meeting; and

  (6) other things that require advance preparation.

  Article 42 In general, the creditors' meeting shall:

  (1) announce the functions and powers of the creditors' meeting and other relevant matters;

  (2) announce the results of the examination of the creditors' qualifications;

  (3) designate and announce the chairman or chairmen of the creditors' meeting;

  (4) make arrangements for the addressing of queries by the creditors to the debtor's legal representative or person in charge;

  (5) include the liquidation committee's presentation of a report on the debtor's production, operations, property and debts and a report on the liquidation work, as well as its proposal of the property disposal plan and distribution plan;

  (6) discuss and examine the proofs of claim and the details and amounts of the security for the claims, discuss and approve any settlement agreement, review the liquidation committee's liquidation report, discuss and approve the plans for the disposal and distribution of the property available in the bankruptcy, etc. (minutes shall be kept of the discussions; if a creditor raises any objections against the claims registered by the people's court or liquidation committee, the people's court shall examine and render a ruling on the same in a timely manner); and

  (7) pursuant to Article 16 of the Enterprise Bankruptcy Law conduct votes based on the discussions.

  If the tasks in the foregoing Items (5) to (7) of the agenda cannot be completed at the creditors' meeting concerned, they shall be continued at the subsequent creditors' meeting.

  Article 43 If a creditor is of the opinion that a resolution of the creditors' meeting violates the law or infringes upon his lawful rights or interests, he may submit such opinion for a ruling by the people's court in accordance with the law within seven days after the adoption of the resolution by the creditors' meeting.

  Article 44 If the liquidation committee's property distribution plan fails to pass after being discussed twice by the creditors' meeting, the people's court shall render a ruling thereon in accordance with the law.

  If creditors accounting for more than half of the total amount of the unsecured claims are dissatisfied with the ruling mentioned in the preceding paragraph, they may lodge an appeal with the people's court at the next higher level within 10 days after the date the people's court renders its ruling. The people's court at the next higher level shall organize a collegiate bench to hear the appeal and such bench shall render its ruling within 30 days.

  Article 45 A creditor may appoint an agent to attend creditors' meetings on his behalf and may authorize such agent to exercise his voting rights. The agent shall submit his power of attorney to the people's court or the chairman of the creditors' meeting.

  Article 46 If another creditors' meeting is to be convened after the first meeting, the chairman of the creditors' meeting shall report the same to the people's court three days prior to the issuance of the meeting notice and the meeting convener shall notify the creditors of the meeting's time, venue, subject, purpose, etc. 15 days before the meeting is to be held.

  7. Liquidation Committee

  Article 47 The people's court shall establish a liquidation committee within 15 days after the date of the ruling declaring the enterprise bankrupt.

  Article 48 Members of the liquidation committee may be selected from the higher level department in charge of the bankrupt enterprise, liquidation-related intermediary organizations and accountants and lawyers. They may also be designated from such government departments as finance departments, administrations for industry and commerce, planning commissions, economic commissions, auditing departments, taxation departments, pricing departments, labour departments, social insurance departments, land administration bureaux, State-owned asset management departments, personnel departments, etc. The (sub-)branch of the People's Bank of China may appoint persons to sit on the liquidation committee in accordance with relevant provisions.

  Article 49 The liquidation committee may, subject to the consent of the people's court, engage a bankruptcy liquidation institution, law firm, accounting firm and other such intermediary organizations to handle certain bankruptcy liquidation tasks. The intermediary institutions shall be accountable to the liquidation committee in respect of the liquidation tasks.

  Article 50 The main duties and responsibilities of the liquidation committee are set forth below:

  (1) assuming control of the bankrupt enterprise: receiving from the bankrupt enterprise's original legal representative and personnel who stayed on the original list of registered assets and list of tangible assets, assuming control of all property, account books, document files, seals, certificates, licenses and relevant materials; if an enterprise supervisory committee was established prior to the declaration of bankruptcy, the foregoing shall be handed over to the liquidation committee by the enterprise supervisory committee and the enterprise's original legal representative;

  (2) inventorying the bankrupt enterprise's property, preparing a property list, balance sheet and lists of assets and liabilities and arranging for the appraisal, auction and realization of the property available in the bankruptcy;

  (3) recovering the bankrupt enterprise's property and exercising property rights against the bankrupt enterprise's debtors and property holders in accordance with the law;

  (4) managing and disposing of the property available in the bankruptcy, deciding whether to perform contracts; carrying out business activities within the liquidation scope and confirming rights of exclusion, set-off rights and rights of repossession;

  (5) commissioning the appraisal, auction, and realization by other means, of the property available in the bankruptcy;

  (6) proposing and implementing, in accordance with the law, the plans for disposal and distribution of the property available in the bankruptcy;

  (7) submitting the liquidation report;

  (8) participating in litigation and arbitration on behalf of the bankrupt enterprise;

  (9) handling matters to be carried out at the conclusion of the bankruptcy, such as enterprise de-registration, etc.; and

  (10) completing other matters specified by the people's court in accordance with the law.

  Article 51 The liquidation committee shall be accountable and report to, and be subject to the supervision of, the people's court. The people's court shall guide the liquidation committee in its work in a timely manner, define the liquidation committee's functions, powers and responsibilities, assist the liquidation committee in drafting its work plan and listen to the liquidation committee's reports.

  If the liquidation committee commits an act that prejudices the interests of a creditor or otherwise violates the law, the people's court may rectify such act pursuant to an application by a creditor or ex officio.

  The people's court may replace an incompetent member of the liquidation committee pursuant to an application by a creditor or ex officio.

  Article 52 The members of the liquidation committee shall, as non-voting participants, attend meetings of, and entertain questions from, the creditors' meeting. Creditors have the right to review relevant information and inquire about relevant matters. If a decision of the liquidation committee is contrary to the interests of a creditor, it may apply to the people's court for a ruling nullifying the decision.

  Article 53 The liquidation committee shall register, inventory, audit and appraise the property available in the bankruptcy and sell it at its current value in a timely manner. If necessary, it may petition the people's court for preservation of the property of the bankrupt enterprise.

  Article 54 The liquidation committee shall take effective measures to protect the bankrupt enterprise's property. If the debtor's property rights would be extinguished if not registered in accordance with the law or if not exercised promptly, such rights shall be registered or exercised promptly. Property that is fragile, perishable or declining in value or the custodial expenses of which are relatively high shall be sold off promptly.

  8. Bankrupcty Claims

  Article 55 The following claims are bankruptcy claims:

  (1) unsecured claims arising prior to the bankruptcy declaration;

  (2) secured claims arising prior to the bankruptcy declaration but the priority payment of which has been waived by the creditor;

  (3) the part of secured claims arising prior to the bankruptcy declaration that exceeds the value of the security provided;

  (4) where the drawer of a negotiable instrument is declared bankrupt, claims arising from the drawee's making payment to the holder or the acceptor's acceptance of the instrument while unaware of the fact that the drawer has been declared bankrupt;

  (5) where the liquidation committee terminates a contract, claims, to which a monetary value can be attached, of the other party against the debtor arising by operation of law or under the contract;

  (6) claims of the trustees of the debtor arising from the disposition of entrusted matters in the interest of the debtor after the bankruptcy of the debtor;

  (7) claims arising from the issuance of bonds by the debtor;

  (8) claims that the law permits guarantors of the debtor to pursue against the debtor after having discharged debts on behalf of the debtor;

  (9) claims filed by guarantors of the debtor when exercising their rights of recourse in advance in accordance with Article 32 of the PRC Security Law;

  (10) where the debtor is a guarantor, guarantee liabilities that, prior to the bankruptcy declaration, an effective legal document determined to be borne by the debtor;

  (11) liability for damages arising from losses to the property of a third party caused by tort or breach of contract on the part of the debtor prior to the bankruptcy declaration; and

  (12) other claims approved by the people's court.

  For the purposes of Item (5) above, actual losses shall be the principle for calculating the claims, liquidated damages shall not be treated as bankruptcy claims and deposits shall no longer be governed by stipulations on deposit penalties.

  Article 56 When a labour contract is terminated due to the bankruptcy of the enterprise, the severance pay that the worker has the right to claim against the enterprise by operation of law or under his labour contract shall be discharged with reference to the sequence specified in Item (1) of the second paragraph of Article 37 of the Enterprise Bankruptcy Law.

  Article 57 Labour compensation owed by the debtor to non-regular staff and workers (including temporary workers) shall be discharged with reference to the sequence specified in Item (1) of the second paragraph of Article 37 of the Enterprise Bankruptcy Law.

  Article 58 The pooled funds of the enterprise's staff and workers owed by the debtor shall be repaid with reference to the sequence specified in Item (1) of the second paragraph of Article 37 of the Enterprise Bankruptcy Law. However, any high interest part thereof that accrued in violation of the law shall not be accorded protection.

  Investments in the enterprise by its staff and workers are not bankruptcy claims.

  Article 59 If the debtor is liable for the debts of a jointly operated enterprise following its withdrawal therefrom, the claims of the jointly operated enterprise's creditors against the debtor are bankruptcy claims.

  Article 60 Creditors who have claims against and owe debts to the debtor may apply to the liquidation committee to exercise their right of set-off. The exercise of the right of set-off shall be subject to the following conditions:

  (1) the creditors' claims have been confirmed; and

  (2) all the claims and debts for which the right of set-off is asserted arose prior to the bankruptcy declaration.

  Bankruptcy claims that have been confirmed may be assigned. The people's court will not support an assignee's setoff of the assigned claim against the debt it owes the debtor.

  Article 61 The following claims are not bankruptcy claims:

  (1) fines imposed on the bankrupt enterprise by administrative and judicial authorities and other related charges;

  (2) late payment fines on payable amounts not paid by the debtor, including doubled late payment interest payable as a result of the debtor's failure to perform an effective legal document and late payment fines on labour insurance premiums, incurred after acceptance of the bankruptcy case by the people's court;

  (3) debt interest accrued after the bankruptcy declaration;

  (4) the expenses incurred by creditors in participating in the bankruptcy procedure;

  (5) rights of the holders of equity and stock in the bankrupt enterprise that attach to such equity and stock;

  (6) claims filed with the liquidation committee after commencement of the distribution of the bankruptcy assets;

  (7) claims in respect of which the period for prescription of actions has expired; or

  (8) management fees and contracting fees not collected from the debtor by the founder(s) of the debtor.

  The filing of the above-mentioned non-bankruptcy rights by the parties concerned shall also be registered by the people's court or liquidation committee.

  Article 62 Funds allocated to the debtor by the government without consideration are not bankruptcy claims. However, funds allocated by financial, poverty relief, science and technology administration and other such administrative departments subsequent to the execution of contracts and based on the principle of use for consideration and scheduled repayment may be treated as bankruptcy claims.

  Article 63 If a creditor has any objection to the confirmation or rejection of his claim by the liquidation committee, he may raise the same with the liquidation committee. If the creditor is also dissatisfied with the liquidation committee's handling of his objection, he may submit his objection to the people's court. The people's court shall render its ruling thereon in accordance with the law after ascertaining the facts.

  9. Property Available in the Bankruptcy

  Article 64 Property available in the bankruptcy shall consist of the following property:

  (1) all property that is owned by the debtor, or with which the debtor carries on business, or that is managed by the debtor, at the time of the bankruptcy declaration;

  (2) property obtained by the debtor during the period between the bankruptcy declaration and the conclusion of the bankruptcy procedure; and

  (3) other property rights exercisable by the debtor.

  Article 65 Such property as things, claims, intellectual property, etc. or property rights owned in common by the debtor and third parties shall be divided during the bankruptcy liquidation and the portion obtained by the debtor from the division shall become part of the property available in the bankruptcy. In the case of non-divisible property or property rights, the portion obtainable by the debtor shall be assigned and the proceeds from the assignment shall become part of the property available in the bankruptcy.

  Article 66 If the registered capital to be invested by the founder(s) of the debtor is not fully paid in, the founder(s) shall make up the shortfall and such made-up shortfall shall become part of the property available in the bankruptcy.

  Article 67 If the enterprise was assigned property by a third party and lawfully obtained ownership thereof or leaseholds thereto prior to going bankrupt, such property shall become part of the property available in the bankruptcy even if it has failed to pay or fully pay the consideration therefor.

  Article 68 If property of the debtor is subject to civil enforcement measures and, after the bankruptcy case has been accepted, a portion remains against which enforcement measures have not been taken or not completed, such portion shall become part of the property available in the bankruptcy once the enterprise has been declared bankrupt. Property subject to reversal of enforcement due to erroneous enforcement shall become part of the property available in the bankruptcy after the reversal of enforcement.

  Article 69 If the debtor obtains a right of subrogation in accordance with the law, the claim enjoyed as a result of such right shall become part of the property available in the bankruptcy.

  Article 70 Unmatured claims shall be deemed matured upon the debtor being declared bankrupt and shall become part of the property available in the bankruptcy. However, the unmatured interest shall be subtracted therefrom.

  Article 71 The following property shall not be available in the bankruptcy:

  (1) third party property in the possession of, or used by, the debtor based on a warehousing, custodial, processing contract, consignment trade, commissioned sale, loan, deposit, lease or other such legal relationship;

  (2) things encumbered by a mortgage, lien or pledge, except where the rights holder has waived his right of priority repayment and except for any portion thereof remaining after priority payment of the claim secured thereby;

  (3) such substitute as insurance benefits, compensation, indemnity, etc. arising from the destruction or loss of the property used as security;

  (4) property that, in accordance with the law, is encumbered by a priority right, except where the rights holder has waived his right of priority repayment and except for any portion thereof remaining from priority payment of the specific claim;

  (5) specific things being sold and purchased, where possession thereof has not yet passed to, but the price therefor has been paid in full by, the other party;

  (6) property that has been delivered to the buyer but for which the procedures for a certificate of title or registration of the passage of title have not yet been carried out;

  (7) property that is the subject of a sales and purchase transaction in which ownership is retained, where the debtor has not yet obtained ownership thereof;

  (8) property the ownership of which vests exclusively in the State and which may not be assigned; or

  (9) property owned by the bankrupt enterprise's labour union.

  Article 72 The holder of rights in the property specified in Item (1) of Article 71 hereof shall have the right to repossess the same.

  If the property mentioned in the preceding paragraph was damaged, destroyed or lost prior to the bankruptcy declaration, the claim filed by the holder of the rights in the property shall be limited to the amount of the direct loss. If the property is damaged, destroyed or lost after the bankruptcy declaration and the liquidation committee is responsible for such damage, loss or destruction, the holder of the rights in the property shall have the right to obtain compensation of equal value.

  If the debtor assigns the afore-mentioned property at a profit, the holder of the rights in such property shall have the right to claim compensation of equal value from the debtor.

  10. Recovery, Disposal and Realization of Property Available in the Bankruptcy

  Article 73 The liquidation committee shall issue written notices to the debtors of the bankrupt enterprise and holders of the bankrupt enterprise's property demanding that they discharge their debts or deliver the property to the liquidation committee within a specified period of time.

  If a debtor of the bankrupt enterprise or a holder of the bankrupt enterprise's property has an objection, it shall submit the same within seven days after receipt of the notice and the people's court shall render a ruling thereon.

  If after receipt of the notice a debtor of the bankrupt enterprise or a holder of the bankrupt enterprise's property not only fails to discharge the debt or deliver the property to the liquidation committee but also fails, without just cause, to submit an objection within the time limit specified for objections, the liquidation committee shall submit a petition to the people's court and enforcement measures shall be taken after the issuance of a ruling to that effect by the people's court.

  The bankrupt enterprise's property that is located abroad shall be recovered by the liquidation committee.

  Article 74 From the date on which the people's court accepts the debtor's bankruptcy petition, the period for prescription of actions in respect of claims enjoyed by the debtor shall be governed by Article 140 of the PRC, Civil Law General Principles on the interruption of the period for prescription of actions. If the debtor and its creditors reach a settlement agreement and the bankruptcy procedure is stayed, the calculation of the period for prescription of actions shall commence anew from the date of the ruling of the people's court staying the bankruptcy procedure.

  Article 75 With the consent of the people's court, the liquidation committee may engage lawyers or persons from other intermediary organizations to pursue claims.

  Article 76 The property of branches, and wholly-owned organizations without legal person status, established by the debtor shall be included in the bankruptcy procedure and inventoried.

  Article 77 The rights and interests attaching to the debtor's investments in wholly-owned enterprises established by it shall be pursued.

  If the wholly-owned enterprises' assets are insufficient to offset their liabilities, the liquidation committee shall halt its recovery efforts.

  Article 78 Recovery of the equity formed by the debtor's investment in third party entities and the returns thereon shall be pursued. If such equity can be sold or assigned, the proceeds from such sale or assignment shall be included as part of the property available in the bankruptcy and distributed.

  If the value of such equity is negative, the liquidation committee shall halt its recovery efforts.

  Article 79 A separate bankruptcy petition shall be filed for a wholly-owned enterprise that the debtor has established or an enterprise in which it has an equity participation or has a controlling interest if such enterprise is insolvent and is required to undergo bankruptcy to pay its debts.

  Article 80 When the liquidation committee disposes of leaseholds to collectively owned land, it shall comply with relevant laws. Leaseholds to collectively owned land for which no requisition procedures were carried out shall be assigned within the collective.

  Article 81 Housing of the bankrupt enterprise's staff and workers for which contracts have been executed, the price of which has been paid and which has been granted to individuals through housing reform is not part of the property available in the bankruptcy. If no housing reform has been carried out, the liquidation committee may apply to the relevant department to carry out housing reform related matters and sell the housing to the staff and workers. Housing that, according to State provisions, does not qualify for housing reform and housing that was not purchased by staff and workers during the course of housing reform shall be disposed by the liquidation committee according to the actual circumstances.

  Article 82 Public welfare facilities such as kindergartens, schools, hospitals, etc. owned by the debtor shall be disposed of in accordance with relevant State provisions and shall not be distributed as property available in the bankruptcy.

  Article 83 Before the disposal of the property available in the bankruptcy, a qualified appraisal institution may be designated to appraise the same. If the creditors‘meeting or the liquidation committee has any objections concerning the conclusions of the appraisal or the appraisal fee, such objections shall be handled with reference to Article 27 of the Supreme People's Court, Evidence in Civil Proceedings Several Provisions.

  Article 84 With the consent of the people's court, an appraisal may be dispensed with, except in the case of State-owned assets, if there are no objections within the creditors' meeting as to the market value of the property available in the bankruptcy.

  Article 85 The realization of the property available in the bankruptcy shall be effected through auction. The liquidation committee shall be responsible for engaging a qualified auction house to conduct the auction.

  No auction shall be conducted if, according to law, the property may not be auctioned or if the proceeds of the auction would be insufficient to pay the expenses required to conduct the auction.

  Property available in the bankruptcy that may not or cannot be put up for auction, as mentioned in the preceding paragraph, may be distributed itself or appraised and sold off during the bankruptcy distribution. If a creditor has any objection to the value of the property available in the bankruptcy as appraised by the liquidation committee in the course of the distribution of the property itself or the appraisal and selling off of the property, he may petition the people's court to conduct an examination.

  Article 86 Complete sets of equipment forming part of the property available in the bankruptcy shall in general be sold as a whole.

  Article 87 Property available in the bankruptcy the circulation of which is restricted by law shall be purchased by the department designated by the State or disposed of in accordance with relevant laws.

  11. Bankruptcy Expenses

  Article 88 Bankruptcy expenses include the following:

  (1) the expenses required in managing, selling off and distributing the property available in the bankruptcy;

  (2) the fee for accepting the bankruptcy case;

  (3) the expenses of the creditors' meeting;

  (4) the expenses required in collecting debts; and

  (5) other expenditures made during the bankruptcy procedure in the common interest of the creditors.

  Article 89 When accepting an enterprise bankruptcy case, the people's court may collect the case acceptance fee in advance in accordance with the Measures for the Collection of People's Court Costs Supplementary Provisions.

  Necessary expenditures arising prior to the bankruptcy declaration shall be paid out of the debtor's property, subject to the approval of the people's court. If the debtor's property is insufficient to cover the same and if the bankruptcy petition was filed by a creditor, the creditor shall pay the same.

  Article 90 The living expenses and medical expenses of the staff and workers during the liquidation period may be paid out of the property available in the bankruptcy on a preferential basis.

  Article 91 The bankruptcy expenses may be paid at any time. If the property available in the bankruptcy is insufficient to cover the bankruptcy expenses, the people's court shall, pursuant to an application by the liquidation committee, rule to conclude the bankruptcy procedure.

  12. Distribution of the Property Available in the Bankruptcy

  Article 92 The liquidation committee shall be responsible for implementing the plan for the distribution of the property available in the bankruptcy once the same has been adopted by the creditors' meeting. Distribution of the property may be conducted all at once or spread over several times.

  Article 93 The plan for the distribution of the property available in the bankruptcy shall cover the following details:

  (1) the types and total value of property available for bankruptcy distribution, and the property that has been realized and that which has not yet been realized;

  (2) the order in which the claims are to be discharged and the types and amounts of property in each tier, including the amounts and basis of calculation of the staff members' and workers' wages and labour insurance premiums and the taxes owed by the bankrupt enterprise; in the case of bankruptcies of enterprises restructured under State plans, the amounts and the basis of calculation of the expenses for the resettlement of the staff and workers shall also be set forth;

  (3) the total amount of the bankruptcy claims and the repayment ratio;

  (4) the method and time(s) of the bankruptcy distribution; and

  (5) an explanation of the proposed follow-up distribution of property that can be recovered in future.

  Article 94 The claims forming part of the property available in the bankruptcy may be the subject of a claim distribution. The principle governing distributions of claims shall be facilitation of the realization of the creditors' claims.

  If the claims confirmed by the people's court are to be distributed to the creditors, the liquidation committee shall issue claim distribution notes to the creditors. The creditors may demand performance by the debtors on the strength of such claim distribution notes. If a debtor refuses to perform his obligation, the creditor may petition the people's court for enforcement.

  Article 95 If a creditor fails to collect the property distributed to it within the designated period of time, such property may be lodged or it may be sold off and the proceeds lodged and the liquidation committee shall issue a reminder to urge the creditor to collect the same. If the creditor fails to collect the property or the proceeds realized from the sale thereof within one month after receipt of the reminder or within two months after the issuance of the reminder by the liquidation committee, the liquidation committee shall conduct a follow-up distribution of such portion of the property.

  13. Conclusion of Bankruptcy

  Article 96 Once the distribution of the property available in the bankruptcy is completed, the liquidation committee shall report the results of the distribution to the people's court and petition the people's court to conclude the bankruptcy procedure.

  If the people's court holds that the report and the petition for conclusion of the bankruptcy procedure received from the liquidation committee comply with the provisions for the conclusion of bankruptcy procedures, it shall rule to conclude the bankruptcy procedure within seven days after the receipt thereof.

  Article 97 Once the bankruptcy procedure is concluded, the liquidation committee shall carry out the enterprise de-registration procedures with the bankrupt enterprise's original registration department.

  After the conclusion of the bankruptcy procedure, if there are outstanding matters such as the existence of property available in the bankruptcy that can still be recovered, follow-up distribution, etc. that require handling, the liquidation committee or certain members thereof may be retained, with the consent of the people's court.

  Article 98 If property becomes available for distribution after the conclusion of the bankruptcy procedure, a follow-up distribution shall be conducted. In addition to property recovered by the people's court as specified in Article 40 of the Enterprise Bankruptcy Law, property distributed in a follow-up distribution shall include the following: moneys recovered from the correction of errors in bankruptcy procedure expenditures, property recovered due the recognition of the rights therein, property relinquished by creditors and rights in property realized after the conclusion of the bankruptcy procedure, etc.

  Article 99: After the conclusion of the bankruptcy procedure, the liquidation committee shall turn over the bankrupt enterprise's files, such as account books, documents, etc. for preservation by the higher level authority in charge of bankrupt enterprise. If the bankrupt enterprise is not subject to a higher level authority in charge, its founder(s) or shareholders shall preserve the same.

  14. Miscellaneous Provisions

  Article 100: If the people's court discovers, during the trial of an enterprise bankruptcy case, that the original legal representative or a person directly in charge of the bankrupt enterprise has committed any of the acts listed in Article 35 of the Enterprise Bankruptcy Law, it shall propose to the relevant department that the legal representative or person directly responsible be subjected to administrative sanctions. If the legal representative or person directly responsible is suspected of having committed a criminal offence, the relevant materials shall be transferred to the relevant State authority for handling.

  Article 101: If the bankrupt enterprise has committed any of the acts listed in Article 35 of the Enterprise Bankruptcy Law, making its property unrecoverable and causing actual losses, the liquidation committee may institute a civil action against the original legal representative or person directly responsible, demanding that he bear civil liability.

  Article 102: If the people's court discovers, after accepting an enterprise bankruptcy case, that the whereabouts of a large amount of the enterprise's property are unknown, it shall transfer the details of and materials on the suspected criminal offence to the relevant State authority for handling.

  Article 103: The people's court may propose to the relevant departments that the main responsible persons of the bankrupt enterprise be restricted from establishing other enterprises and, for the statutory period of time, be prohibited from acting as company directors, supervisors or managers.

  Article 104: If the Supreme People's Court discovers that a people's court at any level, or a higher level people's court discovers that a lower level people's court has truly erred in a ruling issued during a bankruptcy procedure, it shall notify such people's court to rectify its error. If the people's court fails to rectify its error, the Supreme People's Court or the higher level people's court may issue a ruling ordering the lower level people's court to issue a new ruling.

  Article 105: Bankruptcy cases involving enterprises restructured under State plans shall not only be governed by these Provisions, but also by relevant State provisions on enterprise bankruptcy.

  Article 106: These Provisions shall be implemented as of 1 September 2002. Judicial interpretations concerning the trial of enterprise bankruptcy cases formulated prior to the issuance of, and conflicting with, these Provisions shall no longer apply.

相关资讯:
网站导航:
 四六级 指南 动态 经验 试题 资料  托福 指南 动态 经验 留学 备考
 雅思 指南 动态 机经 经验 辅导  公共英语 指南 动态 备考 试题 辅导
 日语 就业 辅导 留学 考试 报考  法语 资料 文化 考试 留学 辅导
 韩语 入门 口语 阅读 留学 文化  西语 辅导 资料 考试 留学 风采
基础法律英语
350元/门
系统讲解知识,全面提升水平
课时数:18课时左右
学员 tueiwi:
自我感觉LEC考得不错,感谢外语教育网的法律英语课程老师。
学员 tyjf:
外语教育网的法律英语信息不错,希望有朝一日可以成为法律达人,顶起!
学员 Alice12345:
我报的是法律英语的辅导班。因为英语底子不太好,一直没有太大的进步。后来,我在外语教育网报名参加了网上培训。感觉老师很负责。课程内容也详细。在老师的帮助下,感觉我的法律英语的水平得到了长足的提高。很感谢法律英语的老师的教导。谢谢老师!
学员 lionm:
一直在学法律英语,但总是找不到门路。不但单词多,而且本来认识的单词意思又变了,头痛死了。听了李文沛老师的法律英语课程后,我觉得好多了。希望能网校的法律英语课程能继续开个中级班。
学员 xyz521:
我一直在找法律英语的课程都没找到,偶然的机会来到外语教育网,发现这里的法律英语的课程真的很不错、信息也很齐全,绝对支持哦!
学员 futami:
以前自己看书,感觉非常吃力,很多地方看不懂。抱着试试看的心理,我报名参加了外语教育网的基础法律英语辅导。沙老师和李老师讲得非常好,重点、难点,经过老师的系统讲解,我都基本掌握了。就连冥思苦想都不能解决的难题,也通过答疑板请教老师而得到了满意的答复。在此衷心感谢网校的老师。
学员 hnigni:
我是法律专业的本科生,因为工作的需要,必须得会法律英语,可之前在学校的时候没好好学过啊。正头疼,同事推荐了外语教育网,于是我就报了名,开始学习。在学习过程中,发现沙老师的课真的很不错,她不但英语口语发音标准,而且她授课的内容通俗易懂,很方便我们接受和学习。另外,外语教育网的教学模式很适合我这种已经参加了工作的人,可以让我兼顾工作和学习,也很不错。特此,到网上来赞一下沙老师!沙老师,谢谢您!也谢谢网校的良好服务!在外语教育网学习,真值!
版权声明
   1、凡本网注明 “来源:外语教育网”的所有作品,版权均属外语教育网所有,未经本网授权不得转载、链接、转贴或以其他方式使用;已经本网授权的,应在授权范围内使用,且必须注明“来源:外语教育网”。违反上述声明者,本网将追究其法律责任。
  2、本网部分资料为网上搜集转载,均尽力标明作者和出处。对于本网刊载作品涉及版权等问题的,请作者与本网站联系,本网站核实确认后会尽快予以处理。
  本网转载之作品,并不意味着认同该作品的观点或真实性。如其他媒体、网站或个人转载使用,请与著作权人联系,并自负法律责任。
  3、本网站欢迎积极投稿
  4、联系方式:
编辑信箱:for68@chinaacc.com
电话:010-82319999-2371