Chương I Luật Phá sản 2014: Những quy định chung

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Law regulates the procedure for submitting, receiving petitions and initiating bankruptcy process; the asset liabilities and measures for asset preservation during bankruptcy settlement; procedure for business operation recovery; the declaration of bankruptcy and implementation of Decisions on the declaration of bankruptcy.

Article 2. Regulated entities

This Law shall be applied to enterprises and cooperatives or cooperative unions (hereinafter referred to as cooperatives) which are established and run in accordance with the regulations of the law.

Article 3. Application of Law on Bankruptcy

1. The Law on Bankruptcy is applied to the bankruptcy process of every enterprise and cooperative based in the territory of Vietnam.

2. In case an international agreement to which Vietnam is a signatory contravenes regulations of this Law, such international agreement shall prevail.

Article 4. Interpretation of terms

In this Law, the terms below are construed as follows:

1. An insolvent enterprise or insolvent cooperative (hereinafter referred to as insolvent entity) is an enterprise or a cooperative having failed to meet the debt liability for 03 months from the deadline for repayment.

2. Bankruptcy is a legal status of an insolvent entity that is declared bankrupt by the People’s Court.

3. A creditor is an individual, an agency or an organization entitled to request the debtors to pay debts. Creditors include creditors of unsecured debts, creditors of partly-secured debts and creditors of secured debts.

4. A creditor of unsecured debts (hereinafter referred to as unsecured creditor) is an individual, an agency or an organization entitled to request the debtor to pay the debts that are not secured against assets of the debtor or a third party.

5. A creditor of secured debts (hereinafter referred to as secured creditor) is an individual, an agency or an organization being entitled to request the debtor to pay the debt secured against assets of the debtor or a third party.

6. A creditor of partly-secured debts (hereinafter referred to as partly-secured creditor) is an individual, an agency or an organization entitled to request the insolvent entity to pay the debt partly secured against assets of the debtor or a third party whose value is not sufficient to cover the debt.

7. Asset management officer is an individual specialized in management and liquidation of the assets of an insolvent entity during the process of bankruptcy settlement.

8. Asset management enterprise is an enterprise practicing in management and liquidation of the assets of an insolvent entity during the process of bankruptcy settlement.

9. Bankruptcy conductors are judges and executive judges of the People’s Courts; The Chairman of the People’s Procuracy, prosecutors; asset management officers and asset management enterprises; The heads of civil execution authorities, bailiffs.

10. Entities involved in bankruptcy process (hereinafter referred to as involved entities) are creditors; employees; insolvent entities; shareholders; members of cooperatives or cooperatives which are members of cooperative unions; debtors of insolvent entities and other entities having relevant benefits and liabilities during the bankruptcy settlement.

11. Fee for submission of request for initiation of bankruptcy (hereinafter referred to as bankruptcy fee) is an amount of money which the applicants for initiation of bankruptcy is required to pay for filing the petition to the People’s Court.

12. Cost of bankruptcy is an amount of money paid for bankruptcy settlement, including the payments for services provided by asset management officers and asset management enterprise, audit, publication and other expenditures according to the regulations of the law.

13. Payment for financial management is an amount of money paid for the bankruptcy settlement services provided by asset management officers and asset management enterprise.

14. Bankruptcy advance is an amount of money decided by the People’s Court in order to make announcement and pay an advance to asset management officers and asset management enterprises.

Article 5. Eligibility and liability to submit written requests for initiation of bankruptcy process

1. Any creditor of unsecured debts or partly-secured debts is entitled to send a written request for initiation of bankruptcy process after 03 months from the payment due date for the debts which the enterprise or cooperative does not pay..

2. Any employee, internal Trade Union (or the superior Trade Union if the internal Trade Union is not established) is entitled to send a written request for initiation of bankruptcy process after 03 months from the day on which the entity have to pay salaries and other debts to the employees.

3. The legal representative of each enterprise or cooperative is liable to send a written request for initiation of bankruptcy process when the entity is insolvent.

4. The owner of any private enterprise, the President of the Board of Directors of any joint-stock company, President of the Member assembly of any multi-member limited liability company, the owner of any single limited liability company or any general partner of any partnership is liability to submit a written request for initiation of bankruptcy process when the entity is insolvent.

5. Any shareholder or any group of shareholders owning at least 20% of ordinary shares for at least 06 consecutive months is entitled to file a written request for initiation of bankruptcy process when the joint-stock company is insolvent. Any shareholder or any group of shareholders owning less than 20% of ordinary shares for at least 06 consecutive months is entitled to file a written request for initiation of bankruptcy process when the joint-stock company is insolvent if it is mentioned in the company’s charter.

6. Any member of any cooperative or any legal representative of any cooperative which is a member of the cooperative union is entitled to file a written request for initiation of bankruptcy process when the entity is insolvent.

Article 6. Announcement of insolvency of enterprises or cooperatives

1. Any individual, agency or organization realizing that any enterprise or a cooperative is insolvent is liable to send a written notification to those mentioned in Article 5 of this Law.

2. The notifying entities must ensure the precision of the notification. In case any entity intentionally notifies false information resulting in causing damage to the enterprise or cooperative, the entity must pay the compensation and have the liability for the damage.

Article 7. Responsibility to provide documents and evidences of relevant entities

1. Any individual, agency or organization keeping documents and evidences related to the bankruptcy case is responsible for providing sufficiently the documents and evidences within 15 days from the receipt of request of creditors, enterprise or cooperative, the People’s Court, the People’s Procuracy, asset management officer or the asset management enterprise.

2. Any individual, agency or organization cannot provide the documents and evidences as prescribed in Clause 1 of this Article must provide a written explanation. Any entity not providing the evidences intentionally without legitimate reason shall be punished according to the regulations of the law.

Article 8. Competence in bankruptcy settlement of the People’s Court

1. The People’s Court of central-affiliated cities and provinces (hereinafter referred to as provincial People’s Court) has the competence in bankruptcy settlement for enterprises and cooperatives registered in the province and for one of the following cases:

a) There are overseas assets or involving entities.

b) The insolvent entity has branches and/or representative offices located in district and/or cities of various provinces;

c) The insolvent entity has real estate in district and/or cities of various provinces;

d) The provincial People’s Court takes the bankruptcy cases under the management of the People’s Court of a district/city of the province due to their complicacy.

2. The district People’s Court has the competence in bankruptcy settlement for enterprises and cooperatives of which the headquarters are located in the district and for the cases not mentioned in Clause 1 of this Article.

3. The Supreme People’s Court shall provide guidance on implementing this Article.

Article 9. Tasks and entitlements of Judges

1. Collect and verify documents and evidences related to the request for initiation of bankruptcy process if necessary.

2. Make the Decision on the initiation of bankruptcy process or the refusal to initiate bankruptcy process.

3. Make the Decision on appointing or replacing the asset management officer and/or the asset management enterprise.

4. Supervise the asset management officer and/or asset management enterprise.

5. Decide to conduct an audit of the insolvent entity if necessary.

6. Make the Decision on the liquidation of the assets of the insolvency entity after the Decision on the initiation of bankruptcy process in order to cover the cost of bankruptcy.

7. Take temporary emergency measures according to the regulations of the law.

8. Impose the prohibition against leaving the place on the representative of the insolvent entity and request the competent authorities to escort him/her according to the regulations of the Law.

9. Convene the creditors' meeting.

10. Make the Decision on approving the resolution of the creditors’ meeting on the plan to resume business operation.

11. Make the Decision on suspending bankruptcy process.

12. Make the Decision on the declaration of bankruptcy of the insolvent entity.

13. Impose administrative penalties and/or request competent authorities to impose criminal penalties according to the regulations of the Law.

14. Refer to the bankruptcy settlements for the prior similar cases with the guidance of the Supreme People’s Court.

15. Must dismiss settling bankruptcy in one of the cases prescribed in Clause 1 Article 10 of this Law.

16. Perform other tasks and powers according to the regulations of the Law.

Article 10. Dismissing settling bankruptcy or replacing the Judge

1. A judge must dismiss settling bankruptcy or be replaced in the following cases:

a) The judge is an involved entity; a representative or a relative of an involved entity of the case;

b) The judge is participating in the case as a prosecutor, a asset management officer, the legal guardian of an involved entity, a valuator or a translator;

c) The Judge is a member of a group of Judges taking charge of the case and has connections of consanguinity with other judges;

d) The judge has once made the Decision on the declaration of bankruptcy for the case;

dd) There is any evidence that the Judge is prejudiced.

2. The replacement of the Judge shall be decided by executive judge of the People’s Court. In case the Judge taking charge of the case is an executive judge, the replacement of the Judge shall be decided by a higher People’s Court. The decision on replacing the Judge of the executive judge shall be the final decision.

Article 11. individuals or enterprises being entitled for practicing financial management.

An individual or an enterprise being entitled for practicing financial management is:

1. A asset management officer;

2. Asset management enterprise

Article 12. Requirements for working as a asset management officer

1. The following individuals are eligible for being issued practice certificates of asset management officer:

a) A lawyer;

b) An auditor;

c) A person having a bachelor degree in law, economy, accountancy or bank and 05 years of experience or more in his/her field.

2. 2. Requirements for working as a asset management officer:

a) Be capable of civil acts;

b) Have ethical qualities, sense of responsibility, integrity and objectivity;

c) Have practice certificate of asset management officer.

3. The Government shall regulate the issuance of practice certificates of asset management officer and State management of asset management officers.

Article 13. Asset management enterprises

1. An enterprise being entitled for practicing financial management is:

a) A partnership;

b) A private enterprise.

2. Requirements for a asset management enterprise.

a) The partnership is established by at least two general partners who are asset management officer and/or the General Director or Director of the partnership is a asset management officer;

b) A private enterprise is owned by a asset management officer who is its Director.

3. The Government shall regulate the financial management and the implementation of State management of asset management enterprises.

Article 14. Individuals prohibited from practicing financial management.

1. Officials and civil servants; military officers, professional soldiers and military workers who are working in the offices and bases of the People’s Army; professional commissioned and non-commissioned officers who are working in the offices and units affiliated to the Police Authorities.

2. An individuals who faces a criminal prosecution; who is convicted and not expunged criminal record; who is incurring administrative penalty of putting into a reform school or a rehabilitation center.

3. An individual who is incapable of civil acts.

Article 15. Revocation of practice certificates of asset management officers

1. An issued practice certificates of asset management officers shall be revoked if the obtainers are:

a) Officials and civil servants; military officers, professional soldiers and military workers who are working in the offices and bases of the People’s Army; professional commissioned and non-commissioned officers who are working in the offices and bases of the Police Authorities.

b) Individuals who are convicted and the sentence

c) Individuals whose practicing certificates of lawyer or auditor is revoked;

d) individuals replaced according to Point a and b of Clause 1 Article 46 of this Law in 02 or more bankruptcy cases.

2. The Government shall regulate the revocation of practice certificate of asset management officer.

Article 16. Rights and obligations of asset management officers and asset management enterprises

1. Manage and supervise the business operation and asset liquidation of the insolvent entities as follows:

a) Collect, verify and manage the documents and evidence related to the business operation of the entities.

b) Draw up lists of assets, creditors and debtors;

c) Preserve assets; prevent selling and/or giving asset without permission of the Judge; prevent dispersing and hiding assets; maximize the value of the entities’ asset on selling and/or liquidating;

d) Supervise the business operation of the entities according to the regulations of the Law;

dd) Hire an individual or an organization according to the regulations of the Law;

e) Advise the Judge on selling the entities’ assets in order to cover the cost of bankruptcy;

g) Sell the entities’ assets in accordance with the Judge’s decision in order to cover the cost of bankruptcy;

h) Valuate and liquidate assets according to the regulations of this Law; send reports to civil execution authorities and notifications to involving entities on the asset liquidation of an appointed individual or organization.

i) Send the collected money to the bank accounts held by the People’s Court or civil execution authorities

2. Represent the insolvent entity if the entity does not have any legal representative.

3. Make a report on assets, debts and the operation of the enterprise or cooperative participating in making plan for recovering the business operation of the insolvent entity.

4. Advise the Judge to do the followings:

a) Collect evidences;

b) Declare that a transaction is invalid and take back the entities’ assets which are illegally sold or given;

c) Take temporary emergency measures; impose administrative penalties; transfer dossier to competent authorities for imposing criminal penalties according to the regulations of the Law.

5. Receive payment and professional liability insurance according to the regulations of the Law.

6. Make a report on the performance of the tasks and powers at the request of the Judge and/or civil execution authorities; Take liability before the Judge, civil execution authorities and the Law for the performance of the tasks and powers.

Article 17. Tasks and powers of civil execution authorities

1. Implement the decision on taking temporary emergency measures, on declaration of an invalid transaction, on the declaration of bankruptcy and other decisions according to the regulations of this Law.

2. Request the asset management officers and/or the asset management enterprises to valuate and liquidate the entities’ assets; Liquidate the assets in the cases prescribed in Clause 4 Article 121 of this Law;

3. Supervise the performance of liquidation of the insolvent entities’ asset of the asset management officers and asset management enterprises; request the asset management officers and asset management enterprises to report on the liquidation.

4. Request the People’s Court to replace the asset management officers and/or the asset management enterprises during the liquidation of the insolvent entities’ assets according to Article 46 of this Law;

5. Redistribute the assets of the insolvent entities in accordance with the decision of the People’s Court.

6. Make the Declaration of finishing the process of the Declaration of bankruptcy.

7. Perform other tasks and powers according to the regulations of the Law on civil execution.

Article 18. Rights and obligations of involved entities

1. Comply with the requests of the Judge, the asset management officers, the asset management enterprises and civil execution authorities according to the regulations of Law on bankruptcy;

2. Provide documents and evidences related to the bankruptcy settlement.

3. Request individuals, agencies and organizations keeping the documents and evidences related to their lawful rights and interests to provide the evidences to the People’s Court.

4. Request the Judge, asset management officer, asset management enterprise to collect and verify the documents and evidence which cannot provide or request for assess and valuate the assets; request the Judge to conduct an audit of the insolvent entities; request the Judge to convene the testifiers.

5. Be informed and allowed to record and make copy of the documents and evidences provided by other involving entities or collected by the Judge.

6. Request for employment, change and cancellation of the temporary emergency measures.

7. Receive eligibility notification for performing their rights and obligations.

8. Protect or employ a legal guardian to protect their lawful rights and interests.

9. Participate in the creditors’ meeting.

10. Request for replacing the asset management officers and/or asset management enterprises according to Article 46 of this Law.

11. Request the asset management officers and/or asset management enterprises to add more creditors and debtors into the lists of creditors and debtors.

12. Advise the asset management officers and/or asset management enterprises to take back the sums of money and/or assets of the debtors.

13. Present at the request of the asset management officers and/or asset management enterprise, at the summon of the People’s Court and comply with the decisions of the People’s Court during the bankruptcy settlement.

14. Participating in the management and liquidation of assets at the requests of the Judge, the civil execution authorities, asset management officers, the asset management enterprises.

15. Request for reconsidering the decision of the People’s Court according to the regulations of this Law.

16. In case an involved entity dies, his/her lawful heir shall perform the rights and obligations prescribed in this Article.

Article 19. Rights and obligations of applicants for initiation of bankruptcy process (hereinafter referred to as requesters)

1. Perform rights and fulfill obligations of the involving entities prescribed in Article 18 of this Law.

2. Advise the People’s Court on the asset management officers and/or asset management enterprises before the initiation of bankruptcy process.

3. Pay the bankruptcy fee and/or bankruptcy advance except the cases in which the bankruptcy fee and/or bankruptcy advance are exempt.

4. Be honest about submitting requests for the initiation of bankruptcy process

Article 20. Rights and obligations of insolvent entities.

1. Perform rights and fulfill obligations of the involving entities prescribed in Article 18 of this Law.

2. Give opinion on accept or reject a number or all of the requests of the requesters.

3. Publicly announce the Decision on the initiation of bankruptcy process on the receipt of the Decision.

Article 21. Controlling and supervising the observance of the Law during the bankruptcy settlement

1. The People’s Procuracy shall control and supervise the observance of the law during the bankruptcy settlement and performance of requesting, advising, and appealing according to the regulations of this Law.

2. The People’s Procuracy shall participate in meetings about considering the advices and appeal of the People’s Procuracy; control and supervise the decisions pertaining to bankruptcy settlement of the People’s Court.

Article 22. Bankruptcy fee

The requesters must pay the bankruptcy fee according to the regulations of the Law on court fees of People’s Court. The requesters prescribed in Clause 2 Article 5 and Point a Clause 1 Article 105 of this Law is exempt from paying this fee.

Article 23. The cost of bankruptcy and the bankruptcy advance

1. The cost of bankruptcy is covered by the value of the assets of the insolvent entities.

2. The requesters must pay the bankruptcy advance except the requesters mentioned in Clause 2 Article 5 and Point a Clause 1 Article 105 of this Law.

3. The People’s Court shall appoint asset management officers and/or asset management enterprises to sell a number of assets of an insolvent entity in order to ensure the cost of bankruptcy. The valuation and sale of the assets shall comply with Articles 122, 123 and 124 of this Law.

4. People’s Court shall decide the bracket of the bankruptcy advance for each specific case according to the regulation of the Law, and decide the return of the advance, except the cases in which the petitioners violated as mentioned in Clause 4 Article 19 of this Law.

Article 24. Payments for asset management officers and asset management enterprises

1. The payment for the asset management officers and asset management enterprises shall be calculated depending on their time, effort and result.

2. The Government shall regulate the payment for the asset management officers and the asset management enterprises.

Article 25. Written requests, provision and notification during bankruptcy settlement

The People’s Court, the People’s Procuracy, civil execution authorities, asset management officers, and asset management enterprises must make requests, provision and written notifications to the involved entities according to the regulations of this Law and the Law on civil procedure.