Chương 5 Luật phá sản 2004: Hội nghị chủ nợ

Chapter V

CREDITORS’ CONFERENCES

Article 61.- Convening the creditors’ conferences

1. Where the inventory of properties of the enterprises or cooperatives which fall into the state of bankruptcy is completed before the date of completing the lists of creditors, within thirty days as from the date of completing the lists of creditors, the judges must convene the creditors’ conferences; if the inventory of the properties of the enterprises or cooperatives is completed after the date of completing the lists of creditors, such time limit shall be counted from the date of completing the inventory of the properties of the enterprises or cooperatives.

2. The subsequent conferences of creditors may be convened by judges on any working day in the course of carrying out the bankruptcy procedures at the requests of the property-managing and – liquidating teams or of the creditors representing at least one-third of the total unsecured debts.

3. The creditors’ conference- convening papers must be sent to the persons entitled to participate in the creditors’ conferences and the persons obliged to participate in the creditors’ conferences, defined in Articles 62 and 63 of this Law, at least fifteen days before the date the conference opens. Enclosed with such papers must be the agenda and contents of the conferences as well as other documents, if any.

4. The creditors’ conferences shall be presided over by the judges in charge of carrying out the bankruptcy procedures.

Article 62.- Right to participate in the creditors’ conferences

The following persons are entitled to participate in creditors’ conferences:

1. The creditors included in the lists of creditors. Creditors may authorize other persons in writing to participate in creditors’ conferences and the authorized persons shall have the rights and obligations like the creditors;

2. The laborers’ representatives, the trade union representatives, who are authorized by the laborers. In this case, the laborers’ representatives and the trade union representatives shall have the rights and obligations like creditors;

3. The guarantors who have already repaid debts for the enterprises or cooperatives which fall into the state of bankruptcy. In this case, they become unguaranteed creditors.

Article 63.- Obligations to participate in creditors’ conferences

1. The applicants for opening of bankruptcy procedures, defined in Articles 15, 16, 17 and 18 of this Law, have the obligations to participate in creditors’ conferences; in cases where they are unable to participate, they must authorize other persons in writing to participate in the creditors’ conferences. The authorized persons shall have the rights and obligations like the authorizing persons if they participate in the creditors’ conferences; for private enterprises whose owners have died, the lawful heirs of those enterprise owners shall participate in the creditors’ conferences.

2. Where the enterprises or cooperatives falling into the state of bankruptcy have no representatives defined in Clause 1 of this Article to participate in the creditors’ conferences, the judges in charge of carrying out the bankruptcy procedures shall appoint persons to represent those enterprises or cooperatives in participating in the creditors’ conferences.

Article 64.- Contents of the first conference of creditors

1. The first conference of creditors shall cover the following contents:

a) The property-managing and-liquidating team leader shall brief the creditors’ conference on the business situation and the financial situation of the enterprise or cooperative which falls into the state of bankruptcy; the results of property inventory, the list of creditors, the list of debtors and other contents deemed necessary;

b) The owner or lawful representative of the enterprise or cooperative presents ideas on the contents briefed to the conference by the property-managing and-liquidating team leader, propose plans and solutions to reorganize the business operation, the capability and time limit for debt repayment;

c) The creditors’ conference shall discuss the contents informed by the property-managing and-liquidating team leader and ideas presented by the enterprise owner or the lawful representative of the enterprise or cooperative;

d) The creditors’ conference adopts the resolution. The resolution must be made in writing and adopted by more than half of the unguaranteed creditors present at the conference, who represent two-thirds or more of the total unsecured debt amount. The resolution of the creditors’ conference is binding on all creditors;

e) Where the creditors’ conference deems it necessary to replace the representatives of creditors in the composition of the property-managing and-liquidating team, it shall elect other representatives for replacement;

f) Proposing the judge to issue a decision to appoint person to manage and run the business activities of the enterprise or cooperative which falls into the state of bankruptcy.

2. In case of necessity to hold a subsequent conference of creditors, the agenda and contents thereof shall be decided by the judge in charge of carrying out the bankruptcy procedures at the proposals of the persons defined in Clause 2, Article 61 of this Law.

Article 65.- Conditions for creditors’ conferences to be valid

The creditors’ conferences shall be valid only when the following conditions are fully met:

1. They are participated by more than half of the unguaranteed creditors representing two-thirds or more of the total unsecured debt amounts;

2. They are participated by the persons with obligation to participate in the creditors’ conferences, defined in Article 63 of this Law.

Article 66.- Postponing creditors’ conferences

1. The creditors’ conference can be postponed once in one of the following cases:

a) It is participated in by not more than half of the unguaranteed creditors representing two-thirds or more of the total unsecured debts;

b) It is so proposed through voting by more than half of the unguaranteed creditors present at the creditors’ conference;

c) The persons with obligation to participate in the creditors’ conference defined in Article 63 of this Law are absent for plausible reasons.

2. Where the judge issues decision to postpone the creditors’ conference, within thirty days as from the date of issuing such decision, the judge must reconvene the creditors’ conference.

Article 67.- Suspension of carrying out the bankruptcy procedures when participants in creditors’ conferences are absent  

The judges shall issue decisions to suspend the bankruptcy procedures in the following cases:

1. Where after the creditors’ conference is postponed once the applicants for opening of bankruptcy procedures, defined in Articles 13 and 14 of this Law do not participate in the reconvened conference of creditors;

2. Where only the persons defined in Articles 15, 16, 17 and 18 of this Law file the applications for opening of bankruptcy procedures while the persons with obligation to participate in the creditors’s conference as defined in Article 63 of this Law do not come to participate in the creditors’ conference without plausible reasons;

3. Where the applicants for opening of bankruptcy procedures withdraw their applications; if the persons defined in Articles 13, 14, 15, 16, 17 and 18 of this Law file the applications for opening of bankruptcy procedures while only one or some of them withdraw the applications, the courts still proceeds with the bankruptcy procedures.