Chương VI Luật Phá sản 2014: Hội nghị chủ nợ

Chapter VI

CREDITORS’ MEETINGS

Article 75. Convening and notification of convening creditors’ meetings

1. The Judge shall convene a Creditors’ meeting within 20 days from the end of the inventory of assets if such inventory of assets is finished after the list of creditors is made or from the day on which the list of creditors is made if such inventory of assets is finished before the list of creditors is made, unless the Creditors’ meeting is not convened as prescribed in Article 105 of this Law.

2. The notification of convening the creditors' meeting and other relevant documents must be sent to the persons having the right to attend the creditors' meeting and the persons obliged to attend the creditors' meeting that are respectively prescribed in Clause 77 and Clause 78 of this Law within 15 days before the opening of such meeting. The summonses to the creditors' meeting must specify the time and place to hold the creditors’ meeting, programme and contents of the meeting.

3. The summonses to the creditors’ meeting and documents must be sent directly, by post or registered mail, via fax, telex, email or others that record this sending.

Article 76. Principles to conduct creditors’ meetings

1. The agreements of the involved entities must be respected if such agreements comply with the regulations of the law and social ethics.

2. Every involved entity is equal.

3. The creditors' meetings must be conducted openly.

Article 77. Right to attend creditors’ meetings

The persons entitled to attend the creditors’ meetings are:

1. The creditors whose names are on the list of creditors. The creditors can authorize others to attend the creditors' meetings and the rights and obligations of the authorized persons are the same as the creditors’. Such authorization must be recorded in writing;

2. The representatives of the employees, representatives of the Trade Union that are authorized by the employees. The rights and obligations of the authorized persons are the same as the creditors’.

3. The guarantors having paid the debts of the insolvent entities; in this case, the guarantors are the unsecured creditors.

Article 78. Obligation to attend creditors’ meetings

1. The persons submitting the written request for the initiation of the bankruptcy process prescribed in Article 5 of this Law, owners or legal representatives of the insolvent entities must attend the creditors' meetings. They can authorize others to attend the creditors’ meetings and the rights and obligations of the authorized persons are the same as the authorizing persons’. Such authorization must be recorded in writing.

2. If the representatives of the insolvent entities are intentionally absent from the creditors’ meetings without legitimate excuses, the asset management officers, asset management enterprises shall send written requests to the People’s Court for imposition of penalties under the regulations of the law.

Article 79. Valid requirements for creditors’ meetings

1. The creditors attending represent at least 51 % of the total unsecured debts.

The creditors not attending the creditors' meetings must sent the written opinions in which the opinions about the contents prescribed in Clause 1 Article 83 of this Law are written to the Judge before the opening of the creditor's meetings. Such creditors shall be considered to attend the creditors’ meetings.

2. The asset management officers, asset management enterprises assigned to deal with the written requests for the initiation of bankruptcy process must attend the creditors’ meetings.

Article 80. Deferment of creditors’ meetings

1. Any creditors' meeting failing to satisfy the requirements prescribed on Article 79 of this Law shall be deferred. The Judge shall record the deferment of the creditors' meeting in writing and record the opinions of such meeting participants. The Judge must notify the involved entities of the deferment of the creditors’ meeting right on the day on which the creditors' meeting is deferred.

2. The Judge must reconvene the creditors’ meeting within 30 days from the deferment of such creditors’ meeting.

3. If the creditors’ meeting that is reconvened as prescribed in Clause 2 this Article does not satisfy the requirements prescribed in Article 79 of this Law, the Judge shall record that in writing and make a Decision on declaration of bankruptcy.

Article 81. Contents and sequence of creditors’ meetings

1. A creditors' meeting shall be conducted as follows:

a) The appointed Judge shall declare the creditors’ meeting open;

b) The creditors’ meeting shall vote on the appointment of a Secretary made by the asset management officer and asset management enterprise to record the creditors' meeting in writing;

c) The asset management officer and asset management enterprise shall report the absence and presence of the participants in the creditors’ meeting according to the summonses of the People’s Court, reasons for absence and check the IDs of the participants in the creditors’ meeting.

d) The Judge shall announce the participants in the creditors’ meeting and the handling of written request for the initiation of the bankruptcy process to the creditors' meeting;

dd) The asset management officer and asset management enterprise shall report the current conditions of business and finance of the insolvent entity; the result of the inventory of assets, list of creditors, list of debtors, and other necessary issues to the creditors’ meeting;

e) The owner or the legal representative of the insolvent entity shall give opinions about the report delivered by the asset management officer and asset management enterprise and propose the solutions to the reorganization of the business, the ability and deadline to pay the debts;

g) The creditors or representatives of the creditors shall present the requests for bankruptcy settlement, reasons, purposes and bases of such requests;

h) The involved entities of representatives of them shall give their opinions about their rights and obligations related to the handling of request for the initiation of bankruptcy process;

i) The witnesses shall give opinions; the assessors and representative of the price assessing agency shall present the assessment result, valuation result; other judicial assistant shall clarify the unclear issues or conflicts;

k) The asset management officer and asset management enterprise shall publish the written opinions, documents and evidences provided by the absentees.

l) The creditors' meeting shall discuss the report delivered by the asset management officer and asset management enterprise and opinions of the participants in the creditors' meeting;

m) The asset management officer, asset management enterprise and the participants in the creditors' meeting can request the Judge to give a Decision to replace the legal representative of the insolvent entity;

n) The creditors can establish their Representative board.

2. The Resolution of the creditors’ meeting shall be passed when more than half of the unsecured creditors attend and representatives of at least 65% of the unsecured debts approve. The Resolution of the creditors’ meeting shall apply to every creditors.

Article 82. Creditors’ Representative boards

1. A creditors’ Representative board have 03 to 05 members that are elected in the creditors’ meeting including a President, a vice-President and member(s).

2. The creditors’ Representative board shall supervise the implementation of the Resolution of the creditors’ meeting and propose the implementation of the Resolution of the creditors’ meeting to the asset management officer and asset management enterprise on behalf of the creditors. If the asset management officer and asset management enterprise do not accept such proposal, the creditors’ Representative board can send a written notification to the Judge in charge of the bankruptcy settlement.

Article 83. Resolutions of creditors’ meetings

1. A creditors’ meeting can propose a Resolution including one of these conclusion:

a) Proposal to suspend the handling of the request for initiation of bankruptcy process (regarding cases prescribed in Clause 1 Article 86 of this Law);

b) Proposal to allow the entity to resume its business operation;

c) Proposal to declare the entity bankrupt.

2. A Resolution of a creditors’ meeting must include:

a) Date;

b) Names of the asset management officer and asset management enterprise;

c) Name and address of the person requesting the initiation of the bankruptcy process;

d) Name and address of the entity forced to file for bankruptcy;

dd) Name and address of the relevant persons;

e) Opinions of participants in the creditors’ meeting;

g) Opinions of the asset management officer and asset management enterprise about the requests of the participants in the creditors’ meeting;

h) Conclusion of the creditors’ meeting and voting result.

3. The Resolution of any creditors’ meeting must be signed by the Judge, asset management officer, representative of the asset management enterprise and announced in the creditors’ meeting.

4. If the Resolution of any creditors’ meeting is not passed under the regulations of Clause 2 Article 81 of this Law, the People’s Court shall declare the entity bankrupt.

Article 84. Sending Resolutions of creditors’ meetings

The People’s Court shall send the Resolution of each creditors’ meeting to the People’s Procuracy at the same level and the persons having the right to attend the creditors' meeting and the persons obliged to attend the creditors' meeting that are respectively prescribed in Clause 77 and Clause 78 of this Law within 03 working days from the organization of such creditors’ meeting.

Article 85. Reconsideration of Resolutions of creditors’ meetings

1. In case of any disagreement on the Resolution of any creditors’ meeting, the persons having the right and owing the obligation to attend such creditors’ meeting (as prescribed in Article 77 and Article 78 of this Law) can submit a written request and the People’s Procuracy at the same level can request the Executive judge of the People’s Court that is handling the bankruptcy to reconsider such Resolution of the creditors’ meeting within 05 working days from the receipt of the Resolution of the creditors’ meeting.

2. A written request must include:

a) Date;

b) Names and addresses of the person or the People’s Procuracy sending the request;

c) Contents.

3. Within 10 working days from the receipt of any request, the Executive judge of People’s Court that is handling the bankruptcy shall consider and decide either:

a) to disapprove the request;

b) to reorganize the creditors’ meeting.

4. The Decision on the handling of any request shall be sent to the People’s Procuracy at the same level and the persons having the right and owing the obligation to attend the creditors’ meeting (prescribed in Article 77 and Article 78 of this Law) within 03 working days from the issuance of such Decision.

5. The Decision issued as prescribed in Clause 3 this Article shall be the final one.

Article 86. Suspension of implementation of bankruptcy process

1. If a entity is solvent from the day of which the People’s Court decide to initiate the bankruptcy process by the day on which the entity is declared bankrupt, the People’s Court shall issue a Decision on the suspension of the implementation of the bankruptcy process.

The entity must repay the bankruptcy advance to the person sending written request for the initiation of the bankruptcy process, unless such person violates the regulation in Clause 4 Article 19 of this Law.

2. Any Decision on the suspension of the implementation of the bankruptcy process must be sent to the persons notified of the Decision on the initiation of the bankruptcy process prescribed in Clause 1 Article 43 of this Law within 03 working days from the issuance of the Decision on the suspension.

Within 15 days from the receipt of a Decision on suspension, the involved entities can send a request for the reconsideration and the People’s Procuracy at the same level can send a petition for the Decision on suspension of the implementation of the bankruptcy process to the People’s Court that is handling the bankruptcy process.

3. Within 03 working days from the receipt of any request and petition prescribed in Clause 2 this Article, the Executive judge of People’s Court that is handling the bankruptcy process must consider and deal with the petition and request for the reconsideration of the Decision on suspension of implementation of bankruptcy process and decide whether

a) to uphold the Decision on suspension of the implementation of the bankruptcy process;

b) or cancel the Decision on suspension of the implementation of the bankruptcy process and assign the Judge to handle the bankruptcy.

4. Any Decision on handling of petition and request for the reconsideration of the Decision on suspension of the implementation of bankruptcy process must be sent to the persons notified of the Decision on initiation of bankruptcy process prescribed in Clause 1 Article 43 of this Law within 03 working days from the issuance of such Decision.