What to do with debts during bankruptcy reorganization, and what to do with debts in bankruptcy reor

For the bankruptcy of the debtor, if the guarantor jointly and severally guarantees, regardless of whether the debt is due or not, the bankruptcy claims declared by the creditor are counted as due, and the creditor may or may not participate in the bankruptcy distribution. If the creditor participates in the bankruptcy distribution, its unpaid creditor's rights may be recovered from the guarantor; If the creditor does not participate in the distribution, it may recover all the claims from the guarantor. However, if the creditor's right is not due, the guarantor may refuse the creditor's request that the guarantee debt also mature early if the debt matures early.

For the bankruptcy of the debtor, if the guarantor undertakes a general guarantee, regardless of whether the debt is due or not, the creditor shall declare the bankruptcy creditor's rights, and if the debt is not due, it shall first pay off the creditor's rights through bankruptcy proceedings, and if the repayment is insufficient, it can recover from the guarantor; If the debt is due, its claim is like a joint and several guarantee claim, and the guarantor can be directly required to bear the guarantee liability. In the case of bankruptcy of a guarantor with joint and several liability, if the creditor's right is due, the creditor may claim rights against the guarantor or against the creditor, and the guarantee claim is no different from the claim of other ordinary debts. If the claim is not due, the dispute is relatively large.

Legal basis: Article 17 of the Guarantee Law of the People's Republic of China stipulates in the guarantee contract that if the debtor fails to perform its debts, the guarantor shall bear the guarantee liability, it is a general guarantee. The guarantor of a general guarantee may refuse to bear the guarantee liability to the creditor before the main contract dispute has not been tried or arbitrated, and the debtor's property is still unable to perform its obligations in accordance with the law.

In any of the following circumstances, the guarantor shall not exercise the rights provided for in the preceding paragraph: (1) the debtor's domicile changes, causing major difficulties for the creditor to require the debtor to perform the debt; (2) The people's court accepts the debtor's bankruptcy case and suspends the enforcement procedure; (3) The guarantor waives the rights provided for in the preceding paragraph in writing.

According to Article 7 of the New Enterprise Bankruptcy Law, if the debtor is unable to pay off its debts as they fall due, and its assets are insufficient to pay off all its debts or it obviously lacks solvency, or there is a possibility of obvious loss of solvency, it may file an application for reorganization, reconciliation or bankruptcy liquidation with the people's court. If the people's court finds that the application for reorganization complies with the requirements after examination, it shall rule that the debtor is restructured. During the reorganization period, the debtor or the administrator shall formulate a draft reorganization plan, which shall be voted and approved by the creditors' conference and approved by the people's court, and the debtor shall be responsible for the implementation of the reorganization plan, and the administrator shall supervise the implementation of the reorganization plan.

The reorganization plan is binding on both the debtor and all creditors. After the completion of the implementation of the reorganization plan, the creditor may exercise its rights in accordance with the repayment conditions of the same type of creditor's rights stipulated in the reorganization plan. For debts reduced or reduced in accordance with the reorganization plan, the debtor shall no longer be liable for repayment from the completion of the implementation of the reorganization plan.

However, if the debtor is unable to execute or does not execute the reorganization plan, the people's court shall, at the request of the administrator or interested parties, rule to terminate the implementation of the reorganization plan and declare the debtor bankrupt.

Generally speaking, the company's debts must be borne by the company, and the shareholders will not bear the company's debts, because the shareholders bear limited liability for the company, and the so-called limited liability means that when the company is established, the shareholders must pay the capital contribution in full and obtain equity according to the equity ratio agreed in the company's articles of association.

In bankruptcy reorganization, the treatment of debts shall be determined by the bankruptcy reorganization plan. The law provides that, during reorganization, the exercise of a security right in specific property of the debtor is suspended. However, if there is a possibility that the collateral may be damaged or its value is significantly reduced, which is sufficient to endanger the rights of the security holder, the holder of the security right may request the people's court to resume the exercise of the security right.

Article 75 of the Company Law of the People's Republic of China.

During the period of reorganization, the exercise of the security right in the specific property of the debtor was suspended. However, if there is a possibility that the collateral may be damaged or its value is significantly reduced, which is sufficient to endanger the rights of the security right holder, the security right holder may request the people's court to resume the exercise of the security right.

During the reorganization period, if the debtor or the administrator borrows money for the purpose of continuing its business, it may create a guarantee for the loan.

Legal Analysis: Bankruptcy reorganization debts are repaid after liquidation. If the debtor reorganizes the debts after bankruptcy, if the guarantor assumes the general guarantee, the creditor should declare the bankruptcy claim regardless of whether the debt is due.

If the debt is not due, the debt should be repaid through bankruptcy proceedings first, and if it is not sufficient, it can be recovered from the guarantor.

Legal basis: Article 113 of the Enterprise Bankruptcy Law of the People's Republic of China The bankruptcy estate shall, after giving priority to the repayment of bankruptcy expenses and common debts, pay off in the following order: (1) the wages, medical treatment, disability allowance and bereavement expenses owed by the bankrupt person to the employees, the basic endowment insurance and basic medical insurance expenses that should be transferred to the personal accounts of the employees, and the compensation that shall be paid to the employees according to the laws and administrative regulations; (2) the bankrupt person's outstanding social insurance expenses other than those provided for in the preceding paragraph and the taxes owed by the bankrupt person; (3) Ordinary bankruptcy creditor's rights.

If the bankruptcy estate is insufficient to satisfy the claims in the same order, it shall be distributed proportionately. The salaries of directors, supervisors and senior managers of a bankrupt enterprise shall be calculated on the basis of the average wages of the employees of the enterprise.

Legal analysis: China's shareholding **** normative opinions stipulate that under normal circumstances, if a creditor applies for bankruptcy liquidation of the debtor, after the court accepts the bankruptcy application and before the debtor is declared bankrupt, the debtor or the investor whose capital contribution accounts for more than one-tenth of the debtor's registered capital may apply to the court for reorganization. When the former state-owned enterprises are converted into companies, it is necessary to clear up the creditor's rights and debts of the original enterprises.

The creditor's rights and debts of the original enterprise shall be borne by the reorganized company.

Legal basis: Article 7 of the Company Law of the People's Republic of China A state-owned enterprise that is transformed into a company must change its operating mechanism in accordance with the conditions and requirements stipulated by the law and the administrative organs, clear its assets and verify its capital in a step-by-step manner, define its property rights, and clear up its creditor's rights and debts.

Article 11 of the Opinions on the Regulation of Shares **** When the original state-owned enterprise is reorganized into a company, the creditor's rights and debts of the original enterprise shall be cleared up, and the creditor's rights and debts of the original enterprise shall be borne by the reorganized company.