Chương 2 Luật phá sản 2004: Nộp đơn và thụ lý đơn yêu cầu mở thủ tục phá sản

Chapter II

SUBMISSION AND RECEPTION OF APPLICATIONS FOR OPENING OF BANKRUPTCY PROCEDURES

Article 13.- Creditors’ right to submit applications for opening of bankruptcy procedures

1. When realizing that enterprises and/or cooperatives fall into the state of bankruptcy, the unguaranteed or partially guaranteed creditors shall all have the right to submit applications for the opening of bankruptcy procedures applicable to such enterprises and/or cooperatives.

2. The application for opening of bankruptcy procedures shall contain the following principal details:

a) The day, month, year of making the application;

b) The name and address of the applicant;

c) The name and address of the enterprise or cooperative falling into the state of bankruptcy;

d) The unsecured or partially secured due debts not repaid by the enterprise or cooperative;

e) The course of debt reclaiming;

f) The grounds of requesting the opening of bankruptcy procedures.

3. The applications for the opening of bankruptcy procedures must be sent to the competent courts defined in Article 7 of this Law.

Article 14.- Laborers’ right to submit applications for the opening of bankruptcy procedures

1. Where enterprises or cooperatives cannot pay wages and/or other debt amounts to laborers and are deemed falling into the state of bankruptcy, the laborers shall appoint their representatives to submit or submit through trade union representatives the applications for opening of bankruptcy procedures against such enterprises or cooperatives.

The laborers’ representatives shall be lawfully appointed when they are voted for with secret ballots or signatures by more than half of the laborers in the enterprises or cooperatives; for large-sized enterprises or cooperatives comprising many attached units, the lawfully-appointed representatives of laborers must be voted for by more than half of the representatives of the attached units.

2. The application for opening of bankruptcy procedures shall contain the following details:

a) The day, month and year of making the application;

b) The name and address of the applicant;

c) The name and address of the enterprise or cooperative falling into the state of bankruptcy;

d) The number of months for which wages have not been paid, the total wage and other debt amounts not yet paid to laborers by the enterprise or cooperative;

e) The grounds of requesting the opening of bankruptcy procedures.

3. The applications for opening of bankruptcy procedures must be sent to the competent courts defined in Article 7 of this Law.

4. After the applications are submitted, the laborers’ representatives or trade union representatives are considered the creditors.

Article 15.- Obligation to submit applications for opening of bankruptcy procedures of the enterprises or cooperatives which fall into the state of bankruptcy

1. Upon realizing that enterprises or cooperatives fall into the state of bankruptcy, the owners of such enterprises or the lawful representatives of the enterprises or cooperatives have the obligation to submit applications for opening of bankruptcy procedures for such enterprises or cooperatives.

2. The application for opening of bankruptcy procedures must contain the following principal details:

a) The day, month, year of making the application;

b) The name and address of the enterprise or cooperative;

c) The grounds of requesting the opening of bankruptcy procedures.

3. The applications for opening of bankruptcy procedures must be sent to the competent courts defined in Article 7 of this Law.

4. The following papers and documents must be submitted together with the applications for opening of the bankruptcy procedures:

a) The report on business activities of the enterprise or cooperative, which clearly explains the causes and circumstances related to the state of insolvency; if the enterprise is a joint-stock company for which the law requires the audit, its financial statement must be certified by an independent auditing organization;

b) The report on measures already taken by the enterprise or cooperative, which, however, have not redressed the state of its incapability of repaying due debts;

c) The detailed list of assets of the enterprise or cooperative and the locations of visible assets;

d) The list of creditors of the enterprise or cooperative, with their names and addresses clearly inscribed; the banks where the creditors open their accounts; the secured and unsecured due debts; the secured and unsecured immature debts;

e) The list of debtors of the enterprise or cooperative, with their names and addresses clearly inscribed; the banks where they open their accounts; the secured and unsecured due debts; the secured and unsecured immature debts;

f) The list clearly inscribing the names and addresses of members of the company being the indebted enterprise, who jointly bear responsibility for the debts owed by the enterprise;

g) Other documents to be supplied by the enterprise or cooperative at the court’s request under law provisions.

5. Within three months after realizing that the enterprises or cooperatives fall into the state of bankruptcy, if the owners of such enterprises or the lawful representatives of the enterprises or cooperatives fail to submit the applications for opening of bankruptcy procedures, they must bear responsibility under law provisions.

Article 16.- The State enterprise owners’ right to submit applications for opening of bankruptcy procedures

1. When realizing that State enterprises fall into the state of bankruptcy but the enterprises decline to fulfill the obligation to submit the applications for opening of bankruptcy procedures, the representatives of the enterprises’ owners shall have the right to submit applications for opening of bankruptcy procedures for such enterprises.

2. The applications for opening of bankruptcy procedures and the papers as well as documents enclosed therewith shall comply with the provisions in Article 15 of this Law.

Article 17.- Joint-stock company shareholders’ right to file applications for opening of bankruptcy procedures

1. When realizing that their joint-stock companies fall into the state of bankruptcy, shareholders or groups of shareholders may file their applications for opening of bankruptcy procedures according to the companies’ charters; if it is not so prescribed by the companies’ charters, the applications shall be submitted under resolutions of the shareholders’ congresses. Where the companies’ charters do not so prescribe while the shareholders’ congress cannot be held, shareholders or groups of shareholders owning more than 20% of the common shares for at least 6 consecutive months are entitled to file applications for opening of bankruptcy procedures against such joint-stock companies.

2. The applications for opening of bankruptcy procedures and the papers as well as documents enclosed with the applications shall comply with the provisions in Articles 15 of this Law, except for the papers and documents prescribed at Points d, e and f of Clause 4, Article 15 of this Law.

Article 18.- The partnership members’ right to submit applications for opening of bankruptcy procedures

1. When realizing that partnerships fall into the state of bankruptcy, the partnership members shall have the right to submit applications for opening of bankruptcy procedures for such partnerships.

2. The applications for opening of bankruptcy procedures and the papers as well as documents enclosed therewith shall comply with the provisions of Article 15 of this Law.

Article 19.- Obligations and responsibilities of applicants for opening of bankruptcy procedures

1. The applicants for opening of bankruptcy procedures defined in Articles 13, 14, 15, 16, 17 and 18 of this Law shall have the obligations to supply in full and time the law-prescribed documents at the courts’ requests in the course of carrying out the bankruptcy procedures.

2. The applicants for opening of bankruptcy procedures, who, due to their unobjectiveness, have caused adverse impacts on the honor, prestige or business activities of enterprises or cooperatives or commit frauds in requesting the opening of bankruptcy procedures, shall, depending on the nature and seriousness of their acts, be disciplined, administratively sanctioned or examined for penal liability; if causing damage, they must pay compensation therefor according to law provisions.

Article 20.- Notification on enterprises, cooperatives falling into the state of bankruptcy

1. While performing their functions and tasks, if realizing that enterprises or cooperatives fall into the state of bankruptcy, the courts, procuracies, inspectorates, capital-managing agencies, auditing organizations or agencies having decided on the establishment of the enterprises, which are not the State-owners of the enterprises, shall have to notify in writing the persons entitled to submit applications for opening of bankruptcy procedures thereof so that they consider the submission of applications for opening of bankruptcy procedures.

2. The notifying agencies must bear responsibility for the truthfulness of such notification.

Article 21.- Bankruptcy charges and advance of bankruptcy charges

1. The bankruptcy charges shall be used for carrying out the bankruptcy procedures. The courts shall decide on the payment of bankruptcy charges on a case-by-case basis under law provisions on charges and fees.

2. The applicants for opening of bankruptcy procedures must advance bankruptcy charges under courts’s decisions, except for cases where the applicants for opening of bankruptcy procedures are laborers defined in Article 14 of this Law.

3. The bankruptcy charges shall be advanced by the State budget in the following cases:

a) The applicants for opening of bankruptcy procedures fall into the cases where bankruptcy charges must not be advanced;

b) The applicants for opening of bankruptcy procedures have to advance the bankruptcy charges but do not have money for payment, but have other assets.

The bankruptcy charges advanced by the State budget shall be refunded to the State budget and deducted from the assets of the enterprises, cooperatives which fall into the state of bankruptcy.

Article 22.- Reception of applications for opening of bankruptcy procedures

1. After receiving the applications for opening of bankruptcy procedures, if deeming it necessary to amend the applications and/or supplement documents, the courts shall request the applicants to effect the amendment and/or supplementation within ten days as from the date of receiving the courts’ requests.

2. The courts shall process the applications for opening of bankruptcy procedures as from the date the applicants produce the receipts of bankruptcy charge advance payment. Where the applicants shall not have to pay the bankruptcy charge advance, the date of processing the applications shall be the date the courts receive the applications. The courts shall have to issue to the applicants the notices that their applications have been received and processed.

Article 23.- Notification on the reception and processing of applications for opening of bankruptcy procedures

1. Where the applicants are not the owners of enterprises or lawful representatives of enterprises or cooperatives which fall into the state of bankruptcy, within five days as from the date of receiving and processing the applications, the courts must notify the enterprises or cooperatives thereof.

2. Within fifteen days as from the date of receiving the courts’ notices, the enterprises and/or cooperatives must produce to the courts the papers and documents prescribed in Clause 4, Article 15 of this Law; if the enterprises or cooperatives which fall into the state of bankruptcy act as guarantors for other persons, within five days as from the date of receiving the courts’ notices, the enterprises and/or cooperatives must notify their state of being requested for opening of bankruptcy procedures to the relevant persons.

Article 24.- Return of applications for opening of bankruptcy procedures

The courts shall decide on the return of applications for opening of bankruptcy procedures in the following cases:

1. The applicants fail to pay bankruptcy charge advance within the time limit set by the courts;

2. The applicants have no right to submit applications;

3. Other courts have already opened the bankruptcy procedures for the enterprises or cooperatives which fall into the state of bankruptcy;

4. There are clear grounds showing that the submission of applications for opening of bankruptcy procedures has, due to unobjectiveness, caused adverse impacts on the honor, prestige and/or business operation of the enterprises or cooperatives or deception is found in requesting the opening of bankruptcy procedures;

5. The enterprises or cooperatives can prove that they do not fall into the state of bankruptcy.

Article 25.- Complaints about the return of applications for opening of bankruptcy procedures

1. Within ten days as from the date of receiving the courts’ decisions on the return of their applications for opening of bankruptcy procedures, the applicants may complain thereabout with the chief judges of such courts.

2. Within seven days as from the date of receiving the written complaints about the decisions to return applications for opening of bankruptcy procedures, the courts’ chief judges must issue one of the following decisions:

a) To retain the decisions on the return of applications for opening of bankruptcy procedures;

b) To cancel the decisions on the return of applications for opening of bankruptcy procedures and to receive and process the applications according to the provisions of this Law.

Article 26.- Transferring the settlement of bankruptcy to other courts; settling disputes over jurisdiction

1. After receiving the applications for opening of bankruptcy procedures, if deeming that the settlement of bankruptcy does not fall under their jurisdiction, the courts which have received the applications shall transfer the bankruptcy settlement to the competent courts and notify the applicants for opening of bankruptcy procedures thereof.

2. Disputes over jurisdiction among district-level people’s courts in the same province shall be settled by the chief judges of the provincial-level people’s courts.

Disputes over jurisdiction among district-level people’s courts of different provinces or among provincial-level people’s courts shall be settled by the chairman of the Supreme People’s Court.

Article 27.- Suspension of requests for fulfillment of property obligations by enterprises or cooperatives which fall into the state of bankruptcy

As from the date the courts receive applications for opening of bankruptcy procedures, the settlement of the following requests for fulfillment of property obligations by the enterprises or cooperatives which fall into the state of bankruptcy must be suspended:

1. The execution of civil judgments regarding property where the enterprises or cooperatives are the judgment debtors;

2. The settlement of cases of demanding the enterprises, cooperatives to fulfill their property obligations;

3. The handling of secured assets of the enterprises, cooperatives for guaranteed creditors, except where so permitted by courts.

Article 28.- Decision to open or not to open the bankruptcy procedures

1. Within thirty days as from the date of receiving applications for opening of bankruptcy procedures, the courts must issue decisions to open or not to open the bankruptcy procedures.

2. The courts shall issue decisions to open the bankruptcy procedures when there are grounds proving that the enterprises, cooperatives fall into the state of bankruptcy. In necessary cases, before issuing decisions to open the bankruptcy procedures, the courts may convene sessions with the participation of the applicants for the opening of the bankruptcy procedures, the owners of the enterprises or the lawful representatives of the enterprises or cooperatives which are requested for opening of bankruptcy procedures, concerned individuals and organizations to consider and check the grounds proving that the enterprises or cooperatives fall into the state of bankruptcy.

3. The decisions to open the bankruptcy procedures contain the following principal details:

a) The day, month and year of issuing the decision;

b) The name of the court; full name of the judge in charge of carrying out the bankruptcy procedures;

c) The date and serial number of the reception of the application for opening of bankruptcy procedures; the name and address of the applicant;

d) The name and address of the enterprise, cooperative falling into the state of bankruptcy;

e) The time and venue for declaration by creditors and the legal consequences of the non-declaration.

4. Courts shall issue decisions not to open the bankruptcy procedures if deeming that the enterprises or cooperatives have not yet fallen into the state of bankruptcy.

Article 29.- Notification of decisions to open the bankruptcy procedures

1. The courts’ decisions on opening of bankruptcy procedures shall be sent to the enterprises or cooperatives which fall into the state of bankruptcy, the procuracies of the same level and be published in local newspapers of the localities where the enterprises or cooperatives which fall into the state of bankruptcy are headquartered, and in the central dailies for three consecutive issues.

2. The courts’ decisions on opening of bankruptcy procedures must be notified to the creditors, the debtors of the enterprises or cooperatives which fall into the state of bankruptcy.

3. The time limit for sending and notifying the decisions on opening of bankruptcy procedures provided for in Clause 1 and Clause 2 of this Article shall be seven days as from the date the courts issue the decisions.

Article 30.- Business activities of enterprises, cooperatives after the issuance of decisions to open the bankruptcy procedures

1. All business activities of enterprises, cooperatives after the issuance of decisions to open the bankruptcy procedures shall be carried out as usual, but must be subject to the supervision and inspection by judges and asset-managing and – liquidating teams.

2. In case of deeming that the managers of enterprises or cooperatives are incapable of running the business activities or their continued running of business activities will not benefit the preservation of assets of the enterprises or cooperatives, the judges, at the request of the creditors’ conference, shall issue decisions to appoint persons to manage and administer the business activities of the enterprises or cooperatives.

Article 31.- Banned or restricted activities of enterprises, cooperatives

1. As from the date of receiving the decisions to open the bankruptcy procedures, the enterprises or cooperatives are strictly forbidden to carry out the following activities:

a) Concealing, dispersing assets;

b) Paying unsecured debts;

c) Abandoning or reducing the right to reclaim debts;

d) Converting unsecured debts into those secured with assets of the enterprises.

2. After receiving the decisions to open the bankruptcy procedures, the following activities of the enterprises or cooperatives must be agreed upon in writing by judges before they are carried out:

a) Pledging, mortgaging, transferring, selling, donating, leasing assets;

b) Receiving assets from transfer contracts;

c) Terminating the performance of effective contracts;

d) Borrowing money;

e) Selling, exchanging stocks or transferring property ownership;

f) Repaying debts newly arising from business activities of the enterprises or cooperatives and paying wages to laborers in the enterprises or cooperatives.

Article 32.- Complaints about decisions not to open bankruptcy procedures

1. Decisions not to open bankruptcy procedures must be sent by courts to the applicants for opening of bankruptcy procedures. Within seven days as from the date of receiving the decisions not to open the bankruptcy procedures, the applicants shall have the right to complain thereabout to the chief judges of such courts.

2. Within five days as from the date of receiving the complaints about decisions not to open bankruptcy procedures, the courts’ chief judges must issue one of the following decisions:

a) To retain the decisions not to open bankruptcy procedures;

b) To cancel the decisions not to open the bankruptcy procedures and issue decisions to open the bankruptcy procedures.