Chương II Luật Phá sản 2014: Đơn và thụ lý đơn yêu cầu mở thủ tục phá sản

Chapter II

WRITTEN REQUESTS FOR INITIATION OF BANKRUPTCY PROCESS AND RECEIPT OF REQUESTS FOR INITIATION OF BANKRUPTCY PROCESS

Article 26. Requests of debtors for initiation of bankruptcy process

1. When requesting the People’s Court to initiate bankruptcy process, the creditors mentioned in Clause 1 Article 5 of this Law must make a request for the initiation of bankruptcy process.

2. A request for initiation of bankruptcy process must contain:

a) Date

b) Name of the People’s Court in charge of bankruptcy settlement;

c) Name and address of the requester;

d) Name and address of the enterprise or the cooperative forced to file for bankruptcy;

dd) The due debts

Proof of due debts must be enclosed herewith .

3. When advising on the selection of asset management officers and/or asset management enterprises, the request must contain the name and address of the asset management officers and/or asset management enterprises.

Article 27. Requests for initiation of bankruptcy process of employees or representatives of Trade Unions

1. When requesting the People’s Court to initiate bankruptcy process, the representative of the employees or the Trade Union mentioned in Clause 2 Article 5 of this Law must make a request for the initiation of bankruptcy process.

2. A request for initiation of bankruptcy process must contain:

a) Date

b) Name of the People’s Court in charge of bankruptcy settlement;

c) Name and address of the petitioner;

d) Name and address of the enterprise or the cooperative forced to file for bankruptcy;

dd) Total amount of outstanding salaries and other debts which are due

Proof of employees' salaries and other due debts must be enclosed herewith.

3. In case of appointment of asset management officers and/or asset management enterprises, the request must contain the name and address of the asset management officers and/or asset management enterprises.

4. From the day of submission of the requests, the employees or the Trade Union representative shall have the rights and obligations of creditors’ according to the regulations of this Law.

Article 28. Request for initiation of bankruptcy process of insolvent entities .

1. The insolvent entities mentioned in Clause 3 and Clause 4 Article 5 of this Law must make requests for the initiation of bankruptcy process.

2. A request for initiation of bankruptcy process must contain:

a) Date

b) Name of the People’s Court in charge of bankruptcy settlement;

c) Name of the insolvent entity

c) Name and address of the requester;

dd) The basis for requesting initiation of bankruptcy process

3. The request for initiation of bankruptcy process must be enclosed with the following documents:

c) A financial statement of the insolvent entity of the recent 03 years. In case the insolvent entity has been established less than 03 years, the financial statement shall cover all the operation time;

b) An explanation for the insolvency; A report on results of the recovering attempts of the entity, which is failed to remedy the insolvency;

c) A detailed list of assets and their locations of the entity

d) A list of creditors and debtors with their respective name, address, loans and debts which are secured, partly-secured and/or unsecured and due or not due;

dd) Documents related to the establishment of the entity;

e) The results of the valuation for the remaining assets (if any)

4. In case of appointment of asset management officers and/or asset management enterprises, the request must contain the name and address of the asset management officers and/or asset management enterprises.

5. If the entities prescribed in Clause 3 and Clause 4 Article 5 of this Law do not file the request for initiation of bankruptcy process on the situation of insolvency of the enterprise or the cooperative, they shall take the liability before the Law. Compensation shall be paid if there is any damage caused by the failure to request initiation of bankruptcy process after the insolvency of the enterprise or the cooperative.

Article 29. Requests for initiation of bankruptcy process of shareholders of groups of shareholders of joint-stock companies, members of cooperative or cooperative members of cooperative unions.

1. When requesting the People’s Court to initiate bankruptcy process, a shareholder of a group of shareholders of a joint-stock company, a member of a cooperative or a legal representative of a cooperative member of a cooperative union mentioned in Clause 5 and Clause 6 Article 5 of this Law must make a request for the initiation of bankruptcy process.

2. The petition must contain the contents prescribed in Clause 2 Article 28 of this Law and be enclosed with the documents (if any) prescribed in Clause 3 and Clause 4 Article 28 of this Law.

Article 30. Method of sending requests for the initiation of bankruptcy process

1. Anyone wishing to request the initiation of bankruptcy process must send the application and documents to the People’s Court either

a) directly;

b) or by post.

2. The day on which the request for bankruptcy process is submitted shall be counted from the day on which the People’s Court receives the request or attested by the day on postmark.

Article 31. Appointment of a judge for bankruptcy settlement

1. Within 03 working days from the receipt of the written request for initiation of bankruptcy process, the executive judge of the People’s Court shall appoint a judge or a group of 03 judges for the bankruptcy settlement.

2. The executive judge of the Supreme People’s Court shall make the regulations on the group of judges according to Clause 1 of this Article.

Article 32. Handling the written request for initiation of bankruptcy process

1. Within 03 working days from the day of appointment, the appointed judge must consider and handle the request as follows:

a) if the written request for initiation of bankruptcy process is satisfactory, the judge shall notify the requester of the bankruptcy fee and bankruptcy advance except the cases in which the bankruptcy fee and bankruptcy advance are exempt.

b) If the written request for initiation of bankruptcy process does not include any content prescribed in Article 26, Article 27, Article 28 or Article 29 of this Law, the judge shall request the requester to amend the petition;

b) The written request for initiation of bankruptcy process shall be transferred to another People’s Court if it is within the jurisdiction of such People’s Court;

d) The written request for initiation of bankruptcy process may be dismissed.

2. The notification of handling of request for initiation of bankruptcy process must be made in writing and sent to the requester and the insolvent entity.

Article 33. Transferring written request for initiation of bankruptcy process to the competent People’s Court and handling the request for reconsideration of such move;

1. The People’s Court handling the written request for initiation of bankruptcy process mentioned in Point c Clause 1 Article 32 of this Law shall transfer the written request for initiation of bankruptcy process and related documents and evidences to a competent People’s Court and notify the requester.

2. Within 03 working days from of the receipt of the Decision on moving the written request for initiation of bankruptcy process, the petitioner or the designated People’s Court may request the executive judge of the higher People’s Court to directly reconsider such move.

3. Within 03 working days from of the receipt of the request, the executive judge of the higher People’s Court shall directly reconsider the move. The Decision of the executive judge of the higher People’s Court shall be the final decision.

Article 34. Requests for amending written requests for initiation of bankruptcy process

If the written request for initiation of bankruptcy process does not include any content prescribed in Article 26, Article 27, Article 28 or Article 29 of this Law, the judge shall request the requester to amend the petition; The time for the petition to be amended shall be decided by the People’s Court but not more than 10 working days from the day on which the requester receives the request; in special cases, the People’s Court may extent the time but not more than 15 days in total.

Article 35. Dismissing written requests for initiation of bankruptcy process

1. The People’s Court shall dismiss the written request for initiation of bankruptcy process in the following cases:

a) The requester is not prescribed in Article 5 of this Law;

b) The requester does not make amendment to the written request for initiation of bankruptcy process according to Article 34 of this Law;

c) Another People’s Court has made a Decision on the initiation of bankruptcy process for the insolvent entity;

b) The requester withdraws the written request for initiation of bankruptcy process according to Clause 2 Article 37 of this Law;

dd) The requester does not pay the bankruptcy fee and bankruptcy advance except the cases in which the bankruptcy fee and bankruptcy advance are exempt.

2. The Decision to dismiss the written request for initiation of bankruptcy process of the People’s Court must contain the explanation for the dismissal. The People’s Court must send such Decision to the requester and the People’s Procuracy at the same level with in 03 working days from the day on which the Decision is made.

Article 36. The Request for reconsidering the dismissal of the written requests for initiation of bankruptcy process

1. Within 03 working days from of the receipt of the Decision to dismiss the written request for initiation of bankruptcy process of the People’s Court, the requester or the People’s Procuracy at the same level may request the executive judge of People’s Court who makes the Decision to reconsider the dismissal.

2. Within 03 working days from of the receipt of the request, the executive judge of People’s Court who makes the Decision must:

a) Make a Decision on upholding the dismissal of the written request for initiation of bankruptcy process.

b) Make a Decision to cancel the dismissal of the written request for initiation of bankruptcy process and take the case according to the regulations of this Law;

3. Within 05 working days from of the receipt of the Decision pertaining to the reconsideration of the dismissal of the written request for initiation of bankruptcy process, the requester or the People’s Procuracy at the same level may request the executive judge of the higher People’s Court for reconsideration.

4. Within 07 working days from of the receipt of the request, the executive judge of the higher People’s Court must:

a) Make a Decision to uphold the dismissal of the written request for initiation of bankruptcy process.

b) Make a Decision to cancel the dismissal of the written request for initiation of bankruptcy process and request the People’s Court to take the case according to the regulations of this Law;

5. The Decision of the executive judge of the higher People’s Court shall be the final decision. This Decision must be sent to the petitioner, the People’s Procuracy at the same level, the People’s Procuracy making request and the People’s Court having made the dismissal.

Article 37. An agreement between the creditors making written requests for initiation of bankruptcy process and an insolvent entity;

1. Within 03 working days from the day on which the People’s Court receives the satisfactory written request for initiation of bankruptcy process, the insolvent entity and creditors may submit a written request to the People’s Court for permission to negotiate withdrawing of request.

The People’s Court shall decide the negotiation duration which is not longer than 20 days from of the receipt of the satisfactory written request for initiation of bankruptcy process.

2. If the parties reach an agreement on withdrawal of the written request for initiation of bankruptcy process, the People’s Court shall dismiss the case.

3. If the parties cannot reach an agreement within the time given, the People’s Court shall request the requester to pay the bankruptcy fee and bankruptcy advance and take the case according to the regulations of this Law.

4. The negotiation of the parties must comply with the regulations of this Article and the Law on bankruptcy;

Article 38. Procedure for paying the bankruptcy fee and bankruptcy advance

1. Within 03 working days from the receipt of the satisfactory written request for initiation of bankruptcy process, People’s Court must estimate an amount of the bankruptcy advance and inform the requester in order for him/her to make the payment.

If there is a request for negotiation, the requester shall be notified of the bankruptcy fee and bankruptcy advance in accordance with Clause 3 Article 37 of this Law.

2. Within 15 days from the receipts of the request for paying the bankruptcy fee and bankruptcy advance, the requester must make the payment as follows:

a) Pay the civil execution authorities the bankruptcy fee;

b) Send the advance of bankruptcy fee to the bank account held by the People’s Court.

Article 39. Receipt of written requests for initiation of bankruptcy process

The People’s Court shall receive the written request for initiation of bankruptcy process on receiving the receipts of the bankruptcy fee and the bankruptcy advance. With regard to the cases in which the bankruptcy fee and bankruptcy advance are exempt, the receipt shall be considered the day on which the People’s Court receives the satisfactory written request for initiation of bankruptcy process.

Article 40. Announcing receipt of written requests for initiation of bankruptcy process

1. Within 03 working days from the receipt of the written request for initiation of bankruptcy process, the People’s Court must send a written notification of such receipt to the requester, the insolvent entity, organizations and/or agencies that are handling cases related to the entity and the People’s Procuracy at the same level.

If the requester is the legal representative of the insolvent entity, the People’s Court must send the notification to the creditors advised by the entity.

2. If the requester is not the insolvent entity, within 15 days from the receipt of the notification of the People’s Court, the insolvent entity must provide the People’s Court with the documents and evidences prescribed in Clause 3 Article 28 of this Law.

Article 41. Temporary suspension of the financial obligation of an insolvent entity;

Within 05 working days from the acceptance of the written request for initiation of bankruptcy process, the suspension of the financial obligation of an insolvent entity shall be as follows:

1. The civil execution authorities must suspend the civil execution pertaining to the assets subject to the judgment debt of the entity, except the judgment forcing the entity to pay the compensation for life, health, reputation or salaries of its employees. The suspension must comply with the regulations of the Law on civil execution;

2. The People’s Court and referee must suspend the civil cases related to the financial obligations in which the insolvent entity is a litigant. The suspension must comply with the regulations of the Law on civil procedure and the Law on commercial arbitration.

The People’s Court must separate and suspend the civil part in a criminal and administrative case, which is related to the financial obligations of the insolvent entity being a litigant. The separation and suspension must comply with the regulations of the Law on criminal procedure and administrative procedure;

3. The competent authorities shall suspend the handling of collateral for secured debts of the insolvent entity.

The collateral which is likely to be damaged or dramatically devalued shall be handled according to Clause 2 and Clause 3 Article 53 of this Law.