Chương V Luật Phá sản 2014: Các biện pháp bảo toàn tài sản

Chapter V

MEASURES FOR PRESERVING ASSETS

Article 59. Invalid transactions

1. A transaction of the insolvent entity which is made within 06 months prior to the day on which the People’s Court gives the Decision on the initiation of bankruptcy process shall be considered invalid in the following cases:

a) The asset transfer does not apply market prices;

b) Unsecured debts are converted into debts secured wholly or partly against assets of the debtor;

c) The payment or offsetting is beneficial for a creditor whose debt is undue, or the amount offset against is larger than the due debt;

d) Assets are given to other entities;

dd) The transaction does not serve the business operation of the entity;

e) The transaction is meant for dispersing the entity’s assets.

2. A transaction of the insolvent entity, which is prescribed in Clause 1 this Article, made with relevant entities within 18 months prior to the day on which the People’s Court gives the Decision on the initiation of bankruptcy process shall be considered invalid.

3. The relevant entities mentioned in Clause 2 this Article include:

a) The parent company, the manager of the parent company and the persons having authority to appoint the manager of the subsidiary ;

b) Subsidiaries of the parent company; enterprises established by the cooperative;

c) People or groups of people that dominate decisions on the business operation of the enterprise or cooperative issued by their management board;

d) the manager of the entity;

dd) Spouse, father, adoptive father, mother, adoptive mother, children, adopted children, brothers, sisters of the manager of the entity or the members and/or shareholders having capital holdings or controlling shares;

e) The individuals appointed as the representatives of those prescribed in Points a, b, c, d and dd this Clause;

g) Enterprises in which the entities prescribed in Points a, b, c, d, dd, e and h this Clause have so much holding that they may dominate the decisions of the management boards of the enterprises;

h) A group of people cooperating with each other in acquiring capital holdings, shares or other benefits of the company in order to dominate the decisions of the company.

4. The asset management officers and/or asset management enterprises are responsible for considering the transactions of the insolvent entity and report on any detected transaction prescribed in Clause 1 and Clause 2 this Article to the People’s Court in order for the People’s Court to consider declaring the transaction invalid.

Article 60. Declaring transactions invalid

1. Within 10 working days from the day on which the asset management officers and/or asset management enterprises and/or the involving entities request for declaring a transaction invalid or the People’s Court detects a transaction prescribed in Clause 1 and Clause 2 Article 59 of this Law, the People’s Court shall make one of the following decisions:

a) Reject the request of the asset management officers and/or asset management enterprises and/or the involving entities.

b) Declare the transaction invalid, cancel the preservation measures and handle the results of the invalid transaction according to the regulation of the Law.

2. The Decision on declaring the transaction invalid shall take effect from the day on which it is made.

3. Within 05 working days from the receipt of the Decision on declaring the transaction invalid, the insolvent entity and its contracting party may send a written request to the executive judge of the People’s Court in order to reconsider such Decision.

4. Within 07 working days from the receipt of the request for reconsidering the Decision on declaring the transaction invalid, the executive judge of the People’s Court given the Decision shall make one of the following decisions:

a) Reject the request for reconsidering the Decision on declaring the transaction invalid;

b) Cancel the Decision on declaring the transaction invalid. Any dispute shall be settled according to Chapter X of this Law.

5. Within 07 working days from the receipt of the Decision prescribed in Point b Clause 1 this Article, the civil execution authorities are responsible for implementing the Decision according to the regulation of the Law on civil execution.

Article 61. Suspension of valid contracts

1. Within 05 working days from the day on which the People’s Court receives the written request for initiation of bankruptcy process, on the perception that the performance of a valid contract which is being performed or planned for performing may cause negative impacts on the insolvent entity, the creditors and/or the entity may request the People’s Court to suspend the execution of the contract, unless secured debts are handled according to Article 53 of this Law.

2. The request for suspending the performance of the contract prescribed in Clause 1 this Article, which is sent to the People’s Court, must have the following contents:

a) Date

b) Name and address of the requestor;

c) Number and type of the contract; conclusion date of the contract;

d) The parties concluding the contract with the insolvent entity;

dd) Specific contents of the contract;

e) Reasons for suspending the performance of the contract.

3. Within 05 working days from the receipt of the request, the People’s Court shall make a Decision on suspending the execution of the contract or send a written notification to the requestor in case of disapproval.

4. Within 05 working days from the day on which the People’s Court make the Decision on the initiation of bankruptcy process, the People’s Court must consider the contracts which are suspended as prescribed in Clause 1 this Article and make either:

a) the Decision to continue executing the unexpired contract if the performance of the contract does not have any negative impact on the insolvent entity;

b) the Decision to suspend the contract and handle the results according to Article 62 of this Law.

5. In case the People’s Court decides not to initiate the bankruptcy process, the People’s Court having made the Decisions on suspending the performance of the contracts prescribed in Clause 1 this Article shall cancel such Decisions.

Article 62. Compensation for damage when contracts are suspended

1. In case of and suspended contract, if the assets that the insolvent entity receives under the contract persist among other assets of the entity, the party signing the contract with the entity can reclaim the assets and pay the amount that the entity has received; if the assets do not exist, the party signing the contract shall have the right as a unsecured creditor to the unpaid amount.

2. If the suspension of a contract leads to the damage to the party signing the contract with the entity, the party signing the contract shall have the right as a unsecured creditor to such compensation.

Article 63. Offsetting liabilities

1. After the People’s Court issues an Decision to initiate the bankruptcy process, creditors and insolvent entity may offset their liabilities against those of the creditors provided that such liabilities are derived from the contract concluded before the Decision to initiate the bankruptcy process is issued.

2. That the liabilities shall be offset must comply with the regulations in Clause 1 this Article and approved by the asset management officer and asset management enterprise. The asset management officer and asset management enterprise must report the liabilities offsetting to the Judge.

3. Methods of offsetting liabilities:

a) If the parties have equivalent financial obligations, they do not need to fulfill such obligations to each other and the obligations shall be considered to be ended, unless otherwise prescribed by law;

b) If the financial obligations of the parties are not equivalent and the positive difference belongs to the entity, the party signing the contract with the entity shall pay the value of such difference. The value of such difference shall be included in the assets of the entity.

b) If the financial obligations of the parties are not equivalent and the positive difference belongs to the party signing the contract with the entity, such party shall become a unsecured creditor of such difference.

Article 64. Assets of insolvent enterprises and cooperatives

1. Assets of an insolvent enterprise or cooperative include:

a) Assets and asset ownership of the insolvent entity at the time the People’s Court decide to initiate the bankruptcy process;

b) Assets and asset ownership acquired after the People’s Court decide to initiate the bankruptcy process;

c) The difference between the value of the collateral and the secured debts that the entity must pay to the creditors of the secured debts;

d) Value of land use right of the entity that is determined according to the regulations of the law;

dd) Dispersed and hidden assets that are confiscated;

e) Assets and asset ownership that are confiscated from the invalid deals;

g) Other assets under the regulations of the law.

2. Assets of an insolvent private enterprise or partnership include:

a) Assets prescribed in Clause 1 this Article;

b) Assets of the owner of the private enterprise or general partner that are not directly involved in the business; if the owner of the private enterprise or general partner have the shared assets, such assets shall be redistributed under the regulations of the civil law and relevant law provisions.

3. If a cooperative is declared bankrupt, the assets that are not redistributed shall be handled under the regulations of the law on cooperatives.

Article 65. Inventory of assets of insolvent entities

1. The insolvent entity must make an inventory of the assets and carry out the asset valuation within 30 days from the receipt of a Decision on initiation of bankruptcy; or send a written request for extension to the Judge if necessary but not more than 2 times, each extension is at most 30 days. The assets of entities shall be valued under the regulations of the law.

2. If the legal representative of an entity is absent, the asset management officer and asset management enterprise shall appoint another representative to make the inventory and carry out the valuation of the assets of such entity.

3. The inventory of assets must be immediately sent to the People’s Court implementing the bankruptcy process.

4. If the inventory and valuation of the assets of any entity prescribed in Clause 1 this Article is incorrect, the People’s Court shall request the asset management officer and asset management enterprise to make an inventory and carry out valuation of part of or all of the assets of the entity. The assets shall be valued according to the market price at the time for inventory.

5. The representative if any entity and other people that do not cooperate in making the inventory of assets or intend to falsify the inventory of assets shall be penalized under the regulations of the law.

Article 66. Sending debt claims

1. The creditors must sent a debt claim to the asset management officer and asset management enterprise within 30 days from the day on which the People’s Court issue a Decision on initiation of bankruptcy process.

2. A debt claim must include:

a) Names, addresses, nationality and ID numbers of the creditors or representatives of the creditors.

b) Total debts payable including the debts, due debts, overdue interest; undue debts; secured debts and their methods; the unsecured debts that the entity liable for; the compensation according to the contract (if any).

3. The documents and evidence of the debts shall be attached to a debt claim. Every debt claim must be signed by the creditor or the legal representative of the creditor.

4. In case of force majeure or objective obstacles, the period of such force majeure or objective obstacles shall not be included in the duration prescribed in Clause 1 this Article.

Article 67. Compilation of lists of creditors

1. The asset management officer and asset management enterprise must make a list of creditors, collect documents related to the debts and publish the list of creditors within 15 days from the deadline for sending a debt claim. The list of creditors must include the names, addresses, nationality and ID numbers of the creditors or representatives of the creditors, of which the secured debts, unsecured debts, due debts and undue debts must be specified.

2. Each list of creditors must be published at the head office of the People’s Court in charge of bankruptcy process and the head office of the entity and on the enterprise registration Portal, Portal of the People’s Court and must be sent to the creditors sending debt claims within 10 days from the day on which such list is published.

3. The creditors and insolvent entity can request the Judge to reconsider the list of creditors within 05 working days from the deadline for publishing such list. In case of force majeure or objective obstacles, the period of such force majeure or objective obstacles shall not be included in the duration prescribed in this Clause.

4. The Judge shall consider the request and make amendment to the list of creditors if necessary within 03 working days from the receipt of the written request for the reconsideration.

Article 68. Compilation of lists of debtors

1. The asset management officer and asset management enterprise must make a list of the debtors of each insolvent entity. The list of creditors must include the names, addresses, nationality and ID numbers of the debtors or representatives of the debtors, of which the secured debts, unsecured debts, due debts and undue debts must be specified.

2. Each list of debtors must be published at the head office of the People’s Court in charge of bankruptcy process and the head office of the entity within 45 days from the issuance of the Decision on initiation of bankruptcy process and must be sent to the debtors within 10 days from the day on which such list is published.

3. The debtors and the insolvent entity can request the Judge to reconsider the list of debtors within 05 working days from

4. The Judge shall consider the request and make amendment to the list of debtors if necessary within 03 working days from the receipt of the written request for the reconsideration.

Article 69. Application for secured transactions by insolvent entities

Any insolvent entity that lend the assets to the others and is obliged to apply for the secured transactions, such entity must immediately apply for them if it has not done that; is the entity does nor do that, the asset management officer and the asset management enterprise shall apply for the secured transactions.

Article 70. Employment of temporary emergency measures

1. During the handling of a request for initiation of bankruptcy process, any entity having eligibility and liability for requesting for the initiation of bankruptcy process prescribed in Article 5 of this Law, asset management officer and asset management enterprise can request the People’s Court in charge of bankruptcy process to decide to employ one of the following temporary emergency measures to preserve the assets of the insolvent entity and ensure the legal rights and obligations of the employees:

a) Allowing selling fragile goods, goods close to expiration date, goods that can hardly be bought if they are not sold at the right time; allowing harvesting and selling farm products or other goods and products;

b) Distraint and sealing assets of the entity;

c) Blocking bank account of the entity;

d) Sealing stores, fund, keeping the accounting books and relevant documents of the entity;

dd) Prohibiting transferring the rights to the assets of the insolvent entity;

e) Remaining the current conditions of the assets of the insolvent entity;

g) Prohibiting or forcing other relevant entities to perform some acts;

h) Compelling the employer to advance the salaries, wages, compensation, occupational accident and occupational disease pensions to the employees;

i) Other temporary emergency measures under the regulations of the law.

2. Anyone requiring employment of temporary emergency measures must send a written request to the People’s Court. A written request for employment of temporary emergency measures must include:

a) Date;

b) Name and address of the person requesting employment of temporary emergency measures;

c) Name and address of the person to whom the temporary emergency measures are applied;

d) Reason for employing the temporary emergency measures;

dd) The employed temporary emergency measures and specific requirements.

The requester shall provide the evidence for the necessity of employing the temporary emergency measures for the People’s Court depending on the request for employing such temporary emergency methods.

3. The procedures for the employment, change and cancellation of the temporary emergency measures; handling of requests for reconsideration of the employment, change and cancellation of the temporary emergency methods; and the implementation of the Decisions on , change and cancellation of the temporary emergency methods must comply with the regulations of this Law, the law on civil procedure and civil execution.

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

Article 71. Handling of suspension of civil execution

1. If the People’s Court issues a Decision on refusal to initiate the bankruptcy process, the People’s Court, referee and civil execution authority that have issued the Decision on suspension prescribed in Article 41 of this Law shall issue a Decision on cancellation of Decision on suspension.

2. If the People’s Court issues a Decision on initiation of the bankruptcy process, the People’s Court, referee and civil execution authority that have issued the Decision on suspension prescribed in Article 41 of this Law shall issue a Decision on suspension and transfer the dossier on such case to the People’s Court that is implementing the bankruptcy process for consideration.

3. If the People’s Court issue a Decision on suspension of implementation of the bankruptcy process in accordance with the regulations in Clause 1 Article 86 of this Law and suspension of the procedures for resuming the business operation prescribed in Point a Clause 1 Article 95 of this Law, the People’s Court, referee and civil execution authority shall issue a Decision on cancellation of the Decision on suspension prescribed in Clause 2 this Article and handle that under the regulations of the law.

Article 72. Handling of suspension of civil execution and handling of cases

1. In case of any suspension on the civil execution as prescribed in Clause 2 Article 71 of this Law, the People’s Court shall implement the bankruptcy process as follows:

a) If the judgment and decision of the People’s Court has become effective and there are no decisions on inventory of assets of the entity, the beneficiaries shall receive the payment as a unsecured creditor;

a) If the judgment and decision of the People’s Court has become effective and there is the decision on inventory of assets of the entity, the beneficiaries shall receive the payment as a creditor of secured debt;

2. In case of any suspension of handling of a case in accordance with the regulations in Clause 2 Article 71 of this Law, on receiving the dossier on the case from the People’s Court issuing the decision on suspension of handling of such case, the People’s Court that is implementing the bankruptcy process must consider and decide the financial obligations that must be fulfilled by the insolvent entity or the financial obligations that other litigants must fulfill as follows:

a) If the insolvent entity must fulfill the financial obligations, the beneficiaries can demand the payment from the assets of the entity as a creditor.

b) If the litigants must fulfill the financial obligations, the insolvent entity shall receive a payment in proportion to such financial obligations.

Article 73. Obligations of banks at which entities have accounts

The bank at which any entity declared bankrupt has an account must not pay the debts of such entity from the day on which the People’s Court issues the Decision on declaration of bankruptcy, unless the People’s Court or the civil execution authority grants a written approval.

Article 74. Obligations of employees

The employees of any entity must protect its assets and must not hide or disperse its assets from the day on which the People’s Court issues the Decision on initiation of bankruptcy process.