Chương 4 Luật phá sản 2004: Các biện pháp bảo toàn tài sản

Chapter IV

MEASURES TO PRESERVE PROPERTIES

Article 43.- Transactions considered invalid

1. The following transactions of the enterprises or cooperatives falling into the state of bankruptcy, which are effected within three months before the courts receive the applications for opening of bankruptcy procedures, shall be considered invalid:

a) Donating moveables or immoveables to other persons;

b) Liquidating bilateral contracts in which the obligations of the enterprises or cooperatives are clearly larger than the obligations of the other party;

c) Repaying undue debts;

d) Mortgaging or pledging properties for debts;

e) Other transactions aiming to disperse properties of the enterprises or cooperatives.

2. When the transactions prescribed in Clause 1 of this Article are declared invalid, the recovered properties must be included into the properties of the enterprises or cooperatives.

Article 44.- Right to request courts to declare transactions invalid

1. While the courts are carrying out the bankruptcy procedures, the unguaranteed creditors, the property-managing and-liquidating teams shall have the right to request the courts to declare the enterprises’ or cooperatives’ transactions defined in Clause 1, Article 43 of this Law invalid.

2. The property-managing and-liquidating team leaders have the responsibility to organize the execution of the courts’ decisions declaring transactions of the enterprises or cooperatives invalid in order to recover properties for the enterprises or cooperatives.

Article 45.- Suspension of performance of valid contracts

1. In the course of carrying out the bankruptcy procedures, if it is deemed that the suspension of the performance of valid contracts which are being performed or have not yet been performed will be more beneficial for the enterprises or cooperatives, the performance of such contracts shall be suspended.

2. The creditors, the enterprises or cooperatives falling into the state of bankruptcy and the property-managing and- liquidating team leaders have the right to request the courts to issue decisions to suspend the contract performance.

Article 46.- Written requests for suspension of contract performance

1. Requesting the courts to issue decisions to suspend the performance of valid contracts, which are being performed or have not yet been performed, must be effected in writing and cover the following principal contents:

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

b) The name and address of the requester;

c) The serial number and name of the contract; the day, month and year of entering into the contract;

d) The partner of the enterprise or cooperative in the contract;

e) The specific contents of the contract;

f) The grounds of requesting the suspension of contract performance.

2. Within five days as from the date of receiving the written requests, if accepting, the judges shall issue decisions to suspend the contract performance; if refusing to accept, they shall notify such to the requesters.

Article 47.-  Payment, damage compensations when contracts are suspended from performance

1. The properties which have been received from contracts by the enterprises or cooperatives falling into the state of bankruptcy and still exist in the properties of such enterprises or cooperatives can be reclaimed by the other contractual party; if such properties no longer exist, the other contractual party shall have the rights like the unguaranteed creditors.

2. Where contracts are suspended from performance, the other party to the contracts shall have the rights like an unguaranteed creditor regarding the damage caused by the suspension of the contract performance.

Article 48.- Obligation clearing

 Creditors and enterprises or cooperatives which fall into the state of bankruptcy may effect obligation clearing for transactions established before the issuance of decisions to open bankruptcy procedures according to the following principles:

1. Where the two parties have obligations towards each other regarding property of the same kind, they shall not have to fulfill obligations, when due, towards each other and the obligations are considered terminating, except otherwise provided for by law;

2. Where their property values or tasks do not correspond each other, the parties shall pay the value difference to each other;

3. Objects which can be valued in money may be cleared against monetary obligations.

Article 49.- Properties of enterprises or cooperatives which fall into the state of bankruptcy

1. The properties of enterprises or cooperatives which fall into the state of bankruptcy shall include:

a) Properties and property rights possessed by the enterprises or cooperatives by the time the courts receive the applications for openining of bankruptcy procedures;

b) The profits, properties and property rights which the enterprises or cooperatives will acquire from the performance of transactions established before the courts receive the applications for opening of bankruptcy procedures;

c) Properties used as security for the fulfillment of obligations of the enterprises or cooperatives. In case of payment with properties being security objects to guaranteed creditors, if the value of the security objects exceeds the payable secured debts, such excessive amount shall be the property of the enterprises or cooperatives;

d) The land use right value of enterprises or cooperatives shall be determined according to the provisions of land legislation.

2. The properties of private enterprises or partnerships which fall into the state of bankruptcy shall include the properties defined in Clause 1 of this Article and the properties of the private enterprise owners or partnership members not used directly in business activities. Where private enterprise owners or partnership members have properties under joint ownership, the property portions of those private enterprise owners or partnership members shall be divided according to the provisions of the Civil Code and other relevant law provisions.

Article 50.- Inventory of properties of enterprises or cooperatives which fall into the state of bankruptcy

1. Within thirty days as from the date of receiving the decisions on opening the bankruptcy procedures, the enterprises or cooperatives which fall into the state of bankruptcy must conduct the inventory of their entire properties according to the detailed lists already submitted to the courts, and determine the values of such properties; if they deem necessary to have more time, they must file their written requests to the judges for extension, but for not more than twice, and each time shall not exceed thirty days.

2. The inventories of the valued properties must be sent immediately to the courts for carrying out the bankruptcy procedures.

3. Where the property inventory and valuation by enterprises or cooperatives as provided for in Clause 1 of this Article are deemed inaccurate, the property-managing and- and liquidating teams shall re-inventory and revalue part or whole of the properties of the enterprises or cooperatives. The property value shall be determined according to the market prices at the time of inventory.

Article 51.- Forwarding debt-reclaiming papers 

1. Within sixty days as from the last day of publishing in newspapers the courts’ decisions on opening of bankruptcy procedures, the creditors must send their written debt reclaims to the courts, detailing the due and undue debts, the secured and unsecured debts to be paid by the enterprises or cooperatives. Enclosed with the written debt reclaims shall be documents proving those debts. Past this time limit, the creditors who do not send their written debt reclaims to the courts shall be regarded as having abandoned their right to reclaim debts.

2. In case of force majeure events or objective obstacles, the duration when the force majeure events or objective obstacles exist shall not be counted into the sixty day- time limit prescribed in Clause 1 of this Article.

Article 52.- Making lists of creditors

1. Within fifteen days as from the date of expiry of the time limit for sending the written debt reclaims, the property-managing and –liquidating teams must complete the lists of creditors and debt amounts. Such lists must clearly state the debt amount of each creditor, clearly identifying the secured debts, unsecured debts, due debts and undue debts.

2. The lists of creditors must be publicly posted up at the offices of the courts which carry out the bankruptcy procedures and the head-offices of the enterprises or cooperatives for ten days counting from the date of posting up. Within this time limit, creditors and enterprises or cooperatives which fall into the state of bankruptcy may complain to the courts about the lists of creditors. In case of force majeure events or objective obstacles, the duration when the force majeure events or objective obstacles exist shall not be counted into the ten day- time limit prescribed in this Clause.

3. Within three days as from the date of receiving the complaints, the courts must consider and settle them; if realizing that the complaints are well grounded, they shall amend and/or supplement the lists of creditors.

Article 53.- Making lists of debtors

1. The property-managing and –liquidating teams must make the lists of persons owing debts to the enterprises or cooperatives which fall into the state of bankruptcy. These lists must clearly inscribe the debt amount owed by each debtor, clearly identifying the secured debts, unsecured debts, due debts and immature debts.

2. The lists of debtors must be publicly posted up at the offices of the courts which carry out the bankruptcy procedures and the head-offices of the enterprises or cooperatives for ten days counting from the date of posting up. Within this time limit, debtors and enterprises or cooperatives which fall into the state of bankruptcy may complain to the courts about the lists of debtors.

3. Within three days as from the date of receiving the complaints, the courts must consider and settle them; if realizing that the complaints are well grounded, they must amend and/or supplement the lists of debtors.

Article 54.- Registration of secured transactions of enterprises or cooperatives which fall into the state of bankruptcy

Enterprises or cooperatives falling into the state of bankruptcy, which lease their secured properties to others, must make registration according to law provisions; if they have not yet made such registration, the property-managing and - liquidating team leaders must effect the registration of such secured transactions.

Article 55.- Application of provisional emergency measures

In necessary cases at the requests of the property-managing and – liquidating teams, the judges in charge of carrying out the bankruptcy procedures shall issue decisions to apply one or some of the following provisional emergency measures in order to preserve the properties of the enterprises or cooperatives which fall into the state of bankruptcy:

1. Permitting the sale of goods easy to decay, goods with use duration going to expire, goods which will be unsalable if not being sold at due time;

2. Distraining, sealing off properties of enterprises or cooperatives;

3. Blocking accounts of enterprises  or cooperatives;

4. Sealing off storehouses, funds, seizing and managing the accounting books and relevant documents of enterprises or cooperatives;

5. Forbidding or compelling enterprises, cooperatives, individuals, other relevant organizations to perform certain acts.

Article 56.- Complaints about decisions on application of provisional emergey measures

1. Within three days as from the date of receiving the courts’ decisions on the application of provisional emergency measures, the persons subject to the application of such measures may complain to the courts’ chief judges.

2. Within three days as from the date of receiving the written complaints about the decisions on application of provisional emergency measures, the courts’ chief judges must issue one of the following decisions:

a) To retain the decisions on application of provisional emergency measures;

b) To cancel part or whole of the decisions on application of provisional emergency measures.

Article 57.- Suspension of civil judgment execution or case settlement

1. As from the date the courts issue decisions to open the bankruptcy procedures, the execution of civil judgments regarding property in which the enterprises or cooperatives in the state of bankruptcy are judgment debtors must be suspended.

The judgment creditors may file their applications to courts requesting to be paid from the properties of the enterprises or cooperatives as unguaranteed creditors or guaranteed creditors, if the courts’ judgments or decisions to distrain properties of the enterprises or cooperatives to secure the judgment execution have taken legal effect.

2. As from the date the courts issue decisions to open the bankruptcy procedures, the settlement of cases related to property obligations in which the enterprises or cooperatives constitute an involved party must be suspended. The courts which decide to suspend the settlement of such cases must transfer the case dossiers to the courts which are carrying out the bankruptcy procedures for settlement.

Article 58.- Settlement of suspended cases in bankruptcy procedures

1. Immediately after receiving the case dossiers transferred by the courts which decide to suspend the settlement of cases, the courts which are carrying out the bankruptcy procedures must consider and decide on the property obligations to be performed by the enterprises or cooperatives which fall into the state of bankruptcy or the property obligations towards the enterprises or cooperatives to be performed by the involved parties.

2. Where the enterprises or cooperatives falling into the state of bankruptcy have to perform the property obligations, the persons towards whom the enterprises or cooperatives perform the property obligations may request to be paid from the properties of the enterprises or cooperatives as unguaranteed creditors.

3. Where the involved parties must perform the property obligations towards the enterprises or cooperatives which fall into the state of bankruptcy, they must pay to the enterprises or cooperatives the value corresponding to such property obligations.

Article 59.- Obligations of banks where enterprises or cooperatives open their accounts

As from the date of receiving the courts’ decisions on the application of liquidation procedures to enterprises or cooperatives, the banks where the enterprises or cooperatives subject to the application of liquidation procedures open their accounts are strictly forbidden to perform the following acts:

1. Paying debts of enterprises or cooperatives, except for the payment agreed in writing by the judges in charge of carrying out the bankruptcy procedures;

2. Performing any acts to clear or pay amounts borrowed from the banks by enterprises or cooperatives.

Article 60.- Obligations of staff members and laborers

1. Immediately after receiving the decisions on opening of bankruptcy procedures, the enterprises or cooperatives which fall into the state of bankruptcy must publicly notify such to all their staff members and laborers.

2. As from the date of being notified, the entire staff members and laborers shall be obliged to protect the properties of the enterprises or cooperatives and must not perform any acts with a view to concealing, dispersing or transferring the properties of the enterprises or cooperatives.