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深圳经济特区企业清算条例 Regulations of Shenzhen Special Economic Zone on Liquidation of Enterprises Chapter I General Provisions

2006-05-16 15:29   我要纠错 | 打印 | 收藏 | | |

颁布日期:19950726  实施日期:19951001  颁布单位:深圳市人大常委会

  Article 1 In order to standardize the acts of liquidation of enterprises, protect lawful rights and interests of creditors, investors and other interested persons, and maintain the order of the market economy of Shenzhen Special Economic Zone (hereinafter referred to as “Special Zone”), these regulations are hereby formulated.

  Article 2 These regulations shall be applicable to any enterprise legal person who has been registered in the Special Zone or whose domicile is located in the Special Zone.

  Article 3 The liquidation of enterprise shall abide by the principles of open and justice.

  Article 4 Any enterprise shall be liquidated according to these regulations in anyone of the following circumstances:

  (1) the operating period being expired or other circumstances for termination coming out according to the articles of association;

  (2) investors deciding to be dissolved;

  (3) being dissolved due to merge or split;

  (4) being deregistered according to law or ordered to closedown; and

  (5) failing to operate without reasonable ground for 6 months upon the date being established or suspending of business voluntarily after operation for more than 6 continuous months.

  These regulations shall not be applicable in the case of bankruptcy liquidation.

  Article 5 The Industrial and Commercial Administrative Authority of Shenzhen Municipal People‘s Government (hereinafter referred to as the “Liquidation Authority”) is the authority in charge of liquidation of enterprises, it shall perform the supervision and administration over the liquidation of enterprises.

  Chapter II The Commencement of Liquidation

  Article 6 The date of liquidation of enterprise shall be:

  (1) the expiration date of business;

  (2) the date that the investors making the decision on dissolution;

  (3) the date of dissolution due to merge or dissolution;

  (4) the date being deregistered or ordered to closedown; and

  (5) the date that the Liquidation Authority announcing to liquidate.

  Article 7 An enterprise shall make a written notice to the registration authority, tax authority, labor authority and deposit bank within 7 days from the date of commencement of the liquidation. In case there are state-owned assets involving in the liquidation, the enterprise shall make a written notice to the state-owned asset management authority.

  Article 8 An enterprise shall file written materials relevant to the liquidation to the Liquidation Authority within 15 days from the date of commencement of the liquidation.

  Article 9 An enterprise shall suspend any act irrelevant to the liquidation from the date of commencement of the liquidation.

  Article 10 From the date of commencement of liquidation to the date of closing liquidation is the period of liquidation, which shall not exceed 180 days; in case such period need deferring due to special situation, such deferral shall be approved in advance by the Liquidation Authority. However the period of liquidation shall not exceed 360 days at the longest.

  In case the liquidation is suspended during the process of liquidation due to litigation or other reasons, the period of suspension of liquidation may not be included in the period of liquidation.

  Chapter III Liquidating Group

  Article 11 A liquidating group, which shall be composed of no less than 3 members, shall be set up within 15 days from the date of commencement of liquidation.

  Article 12 Any liquidation of enterprise due to termination as stipulated by Item (1), (2) and (3) of Article 4 of these regulations shall be carried out by a liquidation group set up by the enterprise, while any liquidation due to the circumstances as stipulated by Item (4) and (5) of the same article shall be carried out by the Liquidation Authority.

  In the case that any liquidation carried out by a liquidation group set up by an enterprise, such liquidation may also be carried out by the Liquidation Authority after application of the enterprise.

  Article 13 Where an enterprise organizes a liquidation group, the group shall be organized by the directors or shareholders of a joint stock limited company or a limited company, or by other investors in the case of other enterprises. An enterprise may appoint members of a liquidation group among the Chinese certified public accountants, certified lawyers or other professionals who know well liquidation affairs. In the case of liquidation of an enterprise which has state-owned assets, the members of the liquidation group shall include some representatives of the state-owned assets administrative authority.

  The list of members of a liquidation group, which organized by the enterprise, shall be submitted to the Liquidation Authority for recording after being determined.

  Article 14 Where the Liquidation Authority organizes a liquidation group, the group shall be composed of investors, relevant authorities, Chinese certified public accountants, certified lawyers or other professionals who know well liquidation affairs.

  A liquidation group, which organized by the Liquidation Authority, shall be responsible for and make working report to the Authority.

  Article 15 An enterprise or the Liquidation Authority may replace the members of the liquidation group in one of the following circumstances when those members:

  (1) commit illegal acts during the liquidation;

  (2) are demanded to be replaced by creditors and investors with warrant; and

  (3) shall be replaced due to other legal reasons.

  Article 16 A liquidation group represents a liquidated enterprise during the period of liquidation.

  Article 17 The powers of a liquidation group include:

  (1) informing the known creditors in written and informing the unknown ones by a bulletin;

  (2) liquidating assets, credit and debt of an enterprise, making balance sheet and assets lists;

  (3) disposing an enterprise and liquidating relevant incomplete business;

  (4) taking back credit of an enterprise and replevying unsubscribed due capital;

  (5) paying wages and social insurance fees for the employees, paying due tax;

  (6) paying off debts of an enterprise;

  (7) disposing residual assets of an enterprise after paying off debts;

  (8) acting on behalf of an enterprise to intervene action and arbitration; and

  (9) handling other liquidation matters.

  Any acts of a liquidation group relevant to exert its powers, the consent of over half of all the members of the liquidation group shall be secured.

  Article 18 Any member of a liquidating group shall devote to its duty so as to performance liquidating obligation according to the law.

  Any member of a liquidating group shall not take bribes or gain other illegal incomes, embezzle or devour assets of a liquidated enterprise.

  Article 19 Reward for members of a liquidation group, which set up by an enterprise, shall be decided by the investors; while it shall be decided by the Liquidation Authority who set up the liquidation group.

  Chapter IV Declaration and Examination of Creditor‘s Rights

  Article 20 Upon its establishment, a liquidation group shall inform the known creditors in writing within 10 days and publish an announcement for at lest 3 times within 60 days. The creditors, who have received notices, shall declare their creditor‘s rights with the liquidation group within 30 days upon the date receiving the notices, while the other creditors shall declare their creditor’s rights within 90 days upon the date the announcement being published for the first time.

  Where the Liquidation Authority organizes the liquidation, in case the assets or the amount of debts are less than RMB 500,000 and the debts are clearly specified and the facts are clear, the creditors shall declare their creditor‘s rights with the liquidation group within 15 days upon receiving the written notices; other creditors shall declare their creditor’s rights within 30 days upon the date the announcement being published for the first time.

  In case any creditors fail to declare their creditor‘s rights within the time limit specified in the announcement and fail to bring a litigation within time limit specified by law, such cases shall be regarded as automatically giving up the aforesaid rights. Except otherwise the overdue declaration is not attributed to the liability of the creditors and they handle the declaration before the assets of liquidation being distributed.

  Article 21 The contents of a written notice and an announcement of liquidation shall include the name and address of the enterprise, the reasons for liquidation, the commencement date of liquidation, the time limit for declaration of creditor‘s rights, the composition of the liquidation group, the address for communication and other essential matters.

  Article 22 A creditor shall specify the character and amount of the creditor‘s rights and the time they incurred and provide relevant evidence at the time of declaration of creditor’s rights.

  The guarantor, after subrogating the debts of the enterprise, shall have the right to declare creditor‘s rights. The amount of the creditor’s rights shall be the amount of subrogation of compensation.

  Where a liquidation group decides to cancel an unperformed contract of a liquidated enterprise, in which results detriment to another party of the contract, the other party shall have right to declare creditor‘s rights based on the amount of damages caused.

  Article 23 The followings shall not be regarded as credit to be declared:

  (1) credit which overruns limitation of actions; and

  (2) expenditure occurred in the processing of liquidation by the creditors.

  Article 24 A liquidation group shall examine the evidence for relevant creditor‘s right declared by the creditor and affirm whether there being a guarantee and the amount of the guarantee on the creditor’s right.

  Article 25 The result of liquidation on the creditor‘s rights, which is liquidated by a liquidation group, shall be notified to the creditors in writing.

  In case any creditors object the liquidated creditor‘s rights, they may, within 15 days upon receiving the written notice, bring a lawsuit to the people’s court or apply for arbitration to an arbitral body in case there being arbitral clause or an arbitral agreement between the creditors and the enterprise.

  Article 26 A liquidation group shall not repay compensation to any creditor within the period of declaration of creditor‘s rights, except otherwise being approved by the Liquidation Authority.

  Chapter V Liquidation of Assets

  Article 27 After the commencement of the liquidation, the legal representative and relevant person in charge shall hand over all the accounting books, documents, files and materials, reply the inquiries relevant to assets and operations of the liquidation group and assist the liquidation group to carry out the liquidation.

  Article 28 The assets of liquidation shall include:

  (1) the assets owned or managed by the enterprise at the commencement of liquidation;

  (2) the assets acquired by the enterprise during the period that after the commencement of liquidation but before the end of the liquidation; and

  (3) other property rights ought to be exercised by the enterprise.

  The assets used to provide a guarantee shall be excluded from the assets of liquidation, but if the value of those assets exceeds the amount of the guaranteed debt, the residual part shall belong to the assets of liquidation.

  Article 29 The creditor‘s rights of the liquidation group in the enterprise shall be duly recovered. A lawsuit may be brought or an arbitration may be applied in case there is any dispute with the recover.

  Where the debtor goes bankrupt of is liquidated, the liquidation group shall declare the creditor‘s rights as an enterprise.

  For those unrecoverable creditor‘s rights, the liquidation group shall show the reasons therein to the investors and bring forward a scheme of disposal.

  Article 30 Where an investor has not contributed his payable capital even at the commencement of liquidation, the liquidation group may set a time limit for the payment.

  Article 31 A liquidation group shall not sell off the assets of liquidation before the end of investigation of creditor‘s rights, except otherwise the delay of selling off those assets will lead to gross loss to the assets of liquidation.

  Before the end of the investigation of creditor‘s rights, in case it is critically necessary to sell off the assets of liquidation of an enterprise which has state-owned assets, such sale shall be submitted to the state-owned assets administrative authority for approval.

  Article 32 The assets in a liquidated enterprise, in case they belong to others, shall be take back by their owner through the liquidation group.

  Article 33 After the completeness of liquidation of assets of an enterprise, the liquidation group shall work out the balance sheets and the list of assets. In case the liquidation organized by the enterprise, the balance sheets and the list of assets shall be submitted to the shareholders‘meeting or the investors for affirmation, while they shall be submitted to the Liquidation Authority for affirmation in case the liquidation organized by the Liquidation Authority.

  Article 34 The liquidation group, after liquidating the assets of the enterprise and working out the balance sheets and the list of assets and therein finding out that the assets of the enterprise being insufficient for repaying debts, shall promptly apply to the people‘s court for declaration of bankruptcy.

  After the enterprise being ruled to go bankruptcy, the liquidation group shall hand over the liquidation affairs to the people‘s court.

  Chapter VI Distribution of Assets and Ending of Liquidation

  Article 35 After the completeness of liquidation of assets of an enterprise, the liquidation group shall work out a liquidating scheme. In case the liquidation organized by the enterprise, the liquidating scheme shall be submitted to the shareholders‘meeting or the investors for affirmation, while in the case that the liquidation organized by the Liquidation Authority, the liquidating scheme shall be submitted to the Liquidation Authority for affirmation.

  Article 36 The following liquidating expenditures shall be paid in priority by the assets of liquidation:

  (1) the rewards for the members of the liquidation group and the cost for appointing of workers;

  (2) the costs of managing, selling off and distributing of the assets of liquidation;

  (3) the fees of litigation, arbitration and announcements; and

  (4) other costs, which being for the lawful rights interests of the creditors and the investors.

  Article 37 The guaranteed creditor‘s rights shall be compensated in priority within the limitation of the value of the guaranty. The part uncompensated shall be regarded as the creditor’rights that without a guarantee.

  Article 38 After repaying the liquidating costs, the assets of liquidation shall be used to clear off debts according to the following order:

  (1) the wages and social insurance fees of the employees;

  (2) the taxes; and

  (3) the debts of the enterprise.

  The undue debts shall be regarded as the due ones, but the undue interests shall be subtracted.

  Article 39 After clearing off the debts according to the order specified by the aforesaid article, the residual assets shall be distributed to the investors according to proportion of investment or the article of the enterprise. If there is an additional agreement between the investors, the agreement shall prevail.

  Article 40 In case there is any dispute to the creditor‘s rights or a litigation in which results the creditors and the investors being temporary unable to join the distribution, an equivalent amount of assets shall be drawn from the assets of bankruptcy at the time of distribution.

  Article 41 After the completeness of the liquidation, the liquidation group shall work out a liquidation report, a report form of income and expenses during the liquidation and other financial accounting books, which shall be submitted to the shareholders‘meeting or the investors for affirmation in case the liquidation is organized by the enterprise, or the Liquidation Authority in case the liquidation is organized by the Liquidation Authority.

  The liability of the liquidation group shall be regarded as being unchained after the liquidation report being affirmed, except otherwise the liquidation group commits illegal acts.

  Article 42 Within ten days upon the liquidation report being affirmed, a liquidation group shall submit the aforesaid liquidation report and statistical forms for record to the Liquidation Authority and cancel the registration with the Registration Authority.

  Article 43 An enterprise shall be announced to terminated by the liquidation group after the cancellation of registration being approved by the Registration Authority.

  Article 44 After the cancellation of registration, the account book relevant to such essential document as the business and liquidation of an enterprise shall be preserved by an investor appointed by the Liquidation Authority.

  Article 45 The settlement of employees of an enterprise shall be handled according to relevant laws and regulations of the state and the Special Zone.

  Chapter VII Legal Liabilities

  Article 46 An enterprise, which ought to but fails to be liquidated according to Item (1), (2) or (3) of Article 4 of these regulations, it shall be ordered to carry out liquidation within time limit; in case the enterprise refuses to liquidate within the specified time limit, the Liquidation Authority shall organize the liquidation and impose a fine of no less than RMB 10,000 but no more than RMB 20,000 on the enterprise.

  Article 47 An enterprise or an liquidation group, which fails to submit relevant materials to the Liquidation Authority according to these regulations, shall be ordered to make rectification by the Liquidation Authority.

  Article 48 In case an enterprise fails to establish an liquidation group, or although establishes one, but the composition of which does not comply with the provisions of these regulations, the enterprise shall be ordered to make rectification by the Liquidation Authority; in case it refuses to make rectification, the liquidation shall be carried by a liquidation group organized by the Liquidation Authority.

  Article 49 Where an enterprise does not inform or publish an announcement to the creditors according to these regulations, it shall be ordered to make rectification by the Liquidation Authority by setting a time limit for informing and publishing an announcement and imposed a fine of no less than RMB 20,000 but no more than RMB 100,000.

  Article 50 Where an enterprise conceals properties, makes illusory record on its balance sheets or assets lists, or distributes its assets before discharging its debts, it shall be ordered to make rectification by the Liquidation Authority and imposed a fine of no less than 1 percent but no more than 5 percent of the amount of the distributed assets, meanwhile the person in charge and other personnel directly responsible shall be imposed a fine of no less than RMB 50,0000 but no more than RMB 100,000 and be prosecuted for criminal liability in case it constitutes a crime.

  Article 51 Where an enterprise does not comply with legal procedure to distribute its assets during the liquidation, it shall be ordered to make rectification by the Liquidation Authority, meanwhile the person in charge shall be imposed a fine of no less than RMB 10,000 but no more than RMB 20,000.

  Article 52 Where the legal representative or relevant person violates the provisions of these regulations by making false reply, explanation, statement or refusing to hand over relevant accounting books, documents, files and materials, he shall be imposed a fine of no more than RMB 10,000 but no less than RMB 20,000; and shall be prosecuted for criminal liability in case it constitutes a crime.

  Article 53 Where the legal representative or relevant person in charge deserts without being authorized by the liquidation group or the Liquidation Authority, he shall be imposed a fine of no less than RMB 5,000 but no more than RMB 10,000.

  Article 54 Where the members of a liquidation group commit the acts of irregularities for favoritism, seek illegal gains or embezzle properties of the enterprise, they shall be ordered to hand back the aforesaid properties, confiscated of illegal gains and concurrently imposed a fine of more than 1 time but less than 5 times of the illegal gains; and shall be prosecuted for criminal liability in case it constitutes a crime.

  Article 55 Where the members of the liquidation group cause damages to the enterprise or the creditors due to aforethought or gross negligence, they shall be responsible for compensation.

  Article 56 Where the Liquidation Authority violates the provisions of these regulations by misusing of authority, which results in detriment to the investors, creditors or other interested persons, it shall be responsible for compensation. While relevant persons responsible shall be imposed administrative responsibility and prosecuted for criminal liability in case it constitutes a crime.

  Chapter VIII Supplementary Provisions

  Article 57 The rules for liquidation of enterprise other than legal person shall be formulated separately.

  Article 58 The Shenzhen Municipal People‘s Government may formulate implementing rules according to these regulations.

  Article 59 These regulations shall take effect as of October 1, 1995. In the case that liquidation of an enterprise has commenced before the enforcement of these regulations, provisions of relevant laws and regulations of that time shall be applicable to such liquidation.

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