X. ON THE ORGANIZATION AND OPERATION OF THE PROPERTY LIQUIDATION TEAM
Article 26.- 5 (five) days at the latest after receipt of the decision on declaration of bankruptcy, the Head of the Lawsuit Enforcement Section shall have to issue the decision to carry out the decision on declaration of bankruptcy.
Article 27.- 10 (ten) days at the latest after the issue of the decision to carry out the decision on declaration of bankruptcy, the Head of the Lawsuit Enforcement Section shall have to issue a decision to set up the Property Liquidation Team. The decision must clearly specify the names, occupations, positions and the offices of the Head, the Deputy Head and other members of the Team, the specific task of each member including the accountant, cashier and store-keeper.
Article 28.- The Property Liquidation Team is composed of:
a/ Executive members are the Head of the Property Liquidation Team and a member of the Lawsuit Enforcement Section (under the Justice Service) appointed by the Head of the Section;
b/ A representative of the Finance Service designated by the Director of the Finance Service;
c/ A representative of the State bank at provincial level appointed by the Bank Director;
d/ A representative of the creditors who has been member of the Property Management Team if no request of replacement is made by the majority of the creditors;
e/ A representative of the trade union of the business;
f/ A representative of the bankrupt business appointed by the legal representative of this business, or the owner of the private business, or the owner of the business with 100% of foreign investment where there is no managerial board.
In case of necessity, the Head of the Property Liquidation Team may invite a number of officials to take part in the activities related to the liquidation of property.
Article 29.- At the founding of the Property Liquidation Team, the Head of the Lawsuit Enforcement Section is entitled to:
1. Request the concerned agencies to appoint a replacement if he deems that the appointee may not be objective or not qualified to fulfill his task. Within 5 (five) days at the latest after the request is made by the Head of the Lawsuit Enforcement Section, the concerned agencies must send their replacements.
2. Settle the request of the creditors about the replacement of the representative of the creditors to the Property Liquidation Team, if he deems that the request of the creditors is aimed ensuring the objectivity in carrying out the task of the Property Liquidation Team;
3. The Director of the Justice Service shall have the final say about all complaints in the replacement of members of the Property Liquidation Team.
Article 30.- The Property Liquidation Team has to operate according to the plan already approved by the Head of the Lawsuit Enforcement Section. It must periodically report the progress and the situation in the implementation of the decision on declaration of bankruptcy to the Head of the Lawsuit Enforcement Section. The Property Liquidation Team shall use the seal of the Lawsuit Enforcement Section in discharging its duty.
Article 31.- The procedures of handling over the property of the Property Management Team to the Property Liquidation Team is defined as follows:
To hand over the whole as well as each detail of the property of the bankrupt business.
To write the minutes of the hand-over of the whole as well as each detail of the property. In case of losses or damage of property, there must be separate minutes for each concrete case and also the reason, and the personal responsibility for the losses and damage. All minutes of property hand-over must bear the signature of the Judge, the Head of the Property Management Team and the Head of the Property Liquidation Team.
From the date of taking delivery, the Property Liquidation Team has the responsibility to preserve all the property and documents and related documents and papers.
Article 32.-
1. The Head of the Property Liquidation Team is entitled to propose that the Judge issue a decision to recover the property of the bankrupt business under the management of another person. When recovering the property, the Head of the Property Liquidation Team shall have to make public the decision on declaration of bankruptcy and the decision on implementation of this decision.
2. If he discovers any property of the bankrupt business which is illegally appropriated and which is not yet handed over by the Property Management Team, the Head of the Property Liquidation Team is entitled to propose that the Judge issue a decision to retrieve it according to the procedure stipulated at Item 1 of this Article. At the same time it must draw up the minutes on the inventory and certification of the real situation and make additions to the property of the bankrupt business with a view to a common solution.
3. The Head of the Property Liquidation Team may request the related State agencies to help in the recovery of the property.
4. The recovery of the property of the bankrupt business stipulated at Article 45 of the Law on Business Bankruptcy shall be carried out by decision of the Court.
Article 33.-
1. The Head of the Lawsuit Enforcement Section shall have to set up the Bankrupt Business Property Evaluation Council. The Council shall comprise:
a/ The Head of the Property Liquidation Team as President of the Council.
b/ A representative of the Finance Service designated by the Director of the Finance Service;
c/ Representatives of a number of related agencies proposed by the Head of the Lawsuit Enforcement Section and appointed by each of these agencies.
d/ 6 (six) months before enrolling the request for declaration of bankruptcy of the business, the Head of the Lawsuit Enforcement Section shall invite the creditors with guaranteed property, the individuals or the representatives of the units which have bought the property of the bankrupt business, to join the Council when evaluating these properties.
e/ The representative of the creditors, the representative of the trade union or the representative of the laborers are entitled to make suggestions to the evaluation of the property but they are not entitled to vote.
2. The Evaluation Council has the following tasks and powers:
a/ To evaluate the whole property before putting it to auction;
b/ To evaluate the properties which have been guarantees of debts and of the properties which the business has sold 6(six) months before enrolling the request for declaration of bankruptcy;
3. The Evaluation Council shall decide by majority vote; in case of parity of votes, the President of the Council shall have the final say.
Article 34.-
1. The Head of the Property Liquidation Team has the duty to organize the auction of the properties of the bankrupt business. The auction shall have to comply with the provisions of the Ordinance on the Execution of Civil Lawsuits, the legal documents guiding the implementation of this Ordinance and must be announced on the dailies at the center and the locality in three consecutive issues, at least 15 (fifteen) days before the auction takes place.
2. The sale of banned properties or properties subjected to restricted circulation on the market must comply with related regulations of the State.
Article 35.-
1. The Head of the Property Liquidation Team must open a bankruptcy account at the bank 5 (five) days at the latest after the issue of the decision to set up the Property Liquidation Team. He shall be the owner of the bankruptcy account.
2. All the money recovered from the property of the bankrupt business must be deposited in the bankruptcy account 3 (three) days at the latest after recovery. Any delay shall be subject to fines at the highest interest loan rate announced by the State Bank for each period in the lending relations between the commercial banks and the various economic organizations.
Article 36.-
1. The distribution of the remaining value of the property of the bankrupt business to the creditors must abide by the plan already drawn up in the decision on declaration of bankruptcy and follow the order of priority stipulated at Article 39 of the Law on Bankruptcy of Businesses.
2. The Head of the Property Liquidation Team shall have to draw up the concrete plan for each phase and report to the Head of the Lawsuit Enforcement Section for decision before the distribution actually takes place.
3. If the creditor has his account at the bank, the Head of the Property Liquidation Team shall fill the procedures to transfer the money to this account of the creditor. It the creditor has no account at the bank, the Head of the Property Liquidation Team shall notify the creditor so that he can come to receive the money personally or send by post to him. The postal fee shall be deducted from the money which is the creditor's due.
Article 37.-
1. 7 (seven) days after full liquidation of the bankrupt property, the Head of the Property Liquidation Team shall make a written report on the implementation of the decision on declaration of bankruptcy. This report shall be sent to the Head of the Lawsuit Enforcement Section and posted up at a public place in the office of the Lawsuit Enforcement Section.
2. 15 (fifteen) days at the latest after the report on the implementation of the Lawsuit is posted up, if no creditor makes any complaint, the head of the Lawsuit Enforcement Section shall issue a decision to end the implementation of the decision on declaration of bankruptcy and also to end the activities of the Property Liquidation Team.
3. The Head of the Lawsuit Enforcement Section shall send a report on the implementation of the decision on declaration of bankruptcy to the Court which has settled the bankruptcy, the Department Managing the Implementation of Civil Lawsuits under the Ministry of Justice and the agency which has issued the business license so as to write off the name of the business. If the bankrupt business is a State-owned business or a business of political and social organizations, the report must also be sent to the agencies or organizations which have issued the decision to set up the business and the financial agency of the same level.
Article 38.- If the Head of the Lawsuit Enforcement Section delays the issue of the decision on implementation of the decision on declaration of bankruptcy, or the decision to set up the Property Liquidation Team and other decision to set up the Property Liquidation Team and other decisions under his jurisdiction, or who makes improper decisions, he shall, depending on the character and extent of his violation, be disciplined or investigated for penal liability. He shall has to pay compensations if the violation causes material damage.
Article 39.- The Head and members of the Property Liquidation Team who commit the following violations shall, depending on the character and extent of the violation, be disciplined or investigated for penal liability and shall have to pay compensations if he causes material damage:
1. Deliberately enter in the inventory of the bankrupt business property which does not belong to the ownership of the bankrupt business or which can't be inventorized, leave out what should be inventorized or inventorize not according to the procedures prescribed by law;
2. Set up the Evaluation Council and organize the auction not according to the prescribed procedures;
3. Fail to carry out fully the measures for preserving the property or take actions resulting in the loss or damage to the property;
4. Carry out the distribution of property not according to the plan of liquidation already approved by the Head of the Lawsuit Enforcement Election;
5. Make illegal use of the property of the bankrupt business;
6. Make untruthful report on the implementation of the decision on declaration of bankruptcy.
Article 40.-
1. The decisions of the Head of the Lawsuit Enforcement Section, of the Head of the Property Liquidation Team are mandatory to all concerned individuals and organizations.
2. Those who deliberately refuse to carry out the decision of the Head of the Lawsuit Enforcement Section, the Head of the Property Liquidation team shall, depending on the character and extent of the violation, be disciplined, received administrative sanction or be investigated for penal liability and shall have to pay compensations if they cause material damage.
Tìm kiếm
Nghị định 189-CP (Bản Word)