What should I do if the bankruptcy claim exceeds the statute of limitations?

Legal analysis: the bankruptcy administrator has the right to exercise the debtor's right to defend against the statute of limitations, and in addition, the claims that exceed the statute of limitations are not bankruptcy claims in accordance with the law, and whether the declared claims exceed the statute of limitations is a statutory review matter for the administrator; As a result, the administrator usually does not recognize the creditor's claims beyond the statute of limitations as bankruptcy claims.

Legal basis: Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Enterprise Bankruptcy Cases Article 61 The following creditor's rights are not bankruptcy creditor's rights: (1) fines, penalties and other related expenses imposed by administrative and judicial organs on bankrupt enterprises; (Cong 2) Late fees for the debtor's failure to pay the amounts payable after the people's court accepts the bankruptcy case, including the delay interest and the late payment penalty for labor insurance premiums that should be doubled if the debtor fails to execute the effective legal documents; (3) Interest on debts after the declaration of bankruptcy; (4) the expenses incurred by creditors in participating in bankruptcy proceedings; (5) the equity of the bankrupt enterprise and the rights of the holder in the equity and the right of the shareholder; (6) the creditor's rights declared to the liquidation of the liquidation after the distribution of the bankruptcy property begins; (7) Creditor's rights that have exceeded the statute of limitations; (8) The management fees and contracting fees not collected by the debtor's start-up unit from the debtor.

If the bankruptcy claim has been declared within the time limit prescribed by the court, the creditor may declare the creditor's right within the time limit prescribed by the court. However, it may not be possible to realize the claim after it has been declared. The time limit for declaration of creditor's rights shall be calculated from the date on which the people's court issues the announcement of acceptance of the bankruptcy application, and shall not be less than 30 days and shall not exceed 3 months at the longest.

1. How long is the time limit for declaration of creditor's rights?

Not less than 30 days, the declaration of creditor's rights means that when the people's court hears a bankruptcy case, when the bankruptcy application is accepted, the creditor must declare the creditor's rights. There is a time limit for the declaration of claims. The creditor shall declare the creditor's rights to the administrator within the time limit for filing the creditor's rights determined by the people's court.

The people's court shall determine the time limit for creditors to declare their creditor's rights. The time limit for declaration of creditor's rights shall be calculated from the date on which the people's court issues the announcement of accepting the bankruptcy application, and shall not be less than 30 days and the longest shall not exceed 3 months.

2. Can conditional claims be declared?

Conditional claims can be declared.

Unexpired claims, interest-bearing or conditional, time-limited or pending claims in litigation and arbitration can be declared, and the unexpired claims shall be deemed to be due when the bankruptcy application is accepted, and the interest-bearing claims shall cease to accrue interest from the time of acceptance of the bankruptcy application.

Creditor's right declaration means that when the people's court hears a bankruptcy case, when the bankruptcy application is accepted, the creditor must declare the creditor's right. There is a time limit for the declaration of claims.

3. How long is the time limit for filing bankruptcy claims?

The minimum period for declaration of creditor's rights shall not be less than 30 days and the longest shall not exceed 3 months.

The liquidation group shall notify the creditors within 10 days from the date of establishment and make an announcement in the newspaper within 60 days. The creditor shall, within 30 days from the date of receipt of the notice, and within 45 days from the date of the announcement if it has not received the notice, declare its creditor's rights to the liquidation group.

Article 185 of the Company Law stipulates that the liquidation group shall notify the creditors within 10 days from the date of establishment and make an announcement in the newspaper within 60 days. The creditor shall, within 30 days from the date of receipt of the notice, and within 45 days from the date of announcement if it has not received the notice, declare its creditor's rights to the liquidation group.

When a creditor declares a creditor's right, it shall explain the relevant matters of the creditor's right and provide supporting materials. The liquidation group shall register the creditor's rights. During the declaration of creditor's rights, the liquidation group shall not pay off the creditors.

Paragraph 1 of Article 18 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Enterprise Bankruptcy Law of the People's Republic of China (II) (hereinafter referred to as the "Judicial Interpretation (II)" of the Bankruptcy Law) stipulates that: "The statute of limitations for the debtor to enjoy the creditor's rights to the outside world shall be suspended from the date on which the people's court accepts the bankruptcy application.

This provision of the Judicial Interpretation of the Bankruptcy Law (II) shall be applied preferentially if it falls under the circumstance that "if the law provides otherwise for the statute of limitations, the law shall follow the provisions of the law" as stipulated in Article 141 of the General Principles of the Civil Law. The provisions of the Judicial Interpretation of the Bankruptcy Law (II) emphasize the protection of the debtor's property and bankruptcy creditors, and in fact, allow the debtor to passively waive the creditor's rights, which can effectively prevent the debtor's bankruptcy fraud. However, this provision is still insufficient in ensuring a normal and reasonable statute of limitations.

This article points out that the criterion for judging whether the statute of limitations should be interrupted and "recalculating the limitation period for the above-mentioned claims" is that "the debtor fails to exercise its rights in a timely manner with respect to its due claims without justifiable reasons", but it is really worth scrutinizing what is the justifiable reason for failing to exercise its rights in a timely manner with respect to its due claims. Whether the debtor's negligent failure to exercise its rights in a timely manner with respect to its due claims can be regarded as justification, and if this can be counted as a valid reason, then the debtor can almost completely exclude the application of this provision on this ground, because it may be difficult for either the administrator or the bankruptcy creditor to prove that the debtor's failure to exercise its rights in a timely manner with respect to its due claims is caused by intent rather than negligence and forgetfulness; If this cannot be counted as a valid reason, then there are almost no other justifiable reasons for the debtor, which is equivalent to declaring that the statute of limitations does not apply at all to the external claims of the debtor who has entered the bankruptcy proceedings within one year before the bankruptcy application is accepted, and this will have a great adverse impact on the security of the transaction and the stability of socio-economic relations. Therefore, in the author's opinion, in order to correctly implement this provision in the Judicial Interpretation of the Bankruptcy Law (II), it is necessary to promptly enumerate and define what are the legitimate and non-legitimate reasons for the debtor's failure to exercise its rights in a timely manner with respect to its due creditor's rights, indicate its subjective and objective constituent elements, the degree to which it needs to be proved, and clarify the corresponding burden of proof on all parties, so as to ensure that the original intent of the legislation is correctly and reasonably realized.

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Article 188 of the Civil Code of the People's Republic of China: The statute of limitations for requesting protection of civil rights from the people's courts is three years. Where the law provides otherwise, follow those provisions. The limitation period is calculated from the date on which the right holder knows or should know that the right has been damaged and the obligor.

Where the law provides otherwise, follow those provisions. However, if more than 20 years have elapsed since the date on which the rights were infringed, the people's courts will not grant protection, and where there are special circumstances, the people's courts may decide to extend the rights holder on the basis of the right holder's application.

Analysis of the law of rough sales: if the bankruptcy claim has been declared within the time limit specified by the court, the creditor may declare the creditor's right within the time limit specified by the court. However, it may not be possible to realize the claim after it has been declared.

Legal basis: Article 185 of the Company Law of the People's Republic of China The liquidation group shall notify the creditors within 10 days from the date of establishment and make an announcement in the newspaper within 60 days. The creditor shall submit its creditor's rights to the liquidation group within 30 days from the date of receipt of the notice, and within 45 days from the date of the announcement if it has not received the notice.