How Banks Protect Creditor s Rights in Corporate Bankruptcy Cases Details 0 3

In accordance with the spirit of bankruptcy reorganization, once the reorganization is accepted by the court, the debtor enterprise can obtain the opportunity to continue its operation, and the enterprise is temporarily exempted from the lawsuits and demands of the creditors.

According to the Guarantee Law, if it is a joint and several guarantee, then there is no problem, the bank, as a creditor, can directly find a guarantor, especially bear the guarantee liability, if there is no agreement on the guarantee method when signing the guarantee contract, then in accordance with the provisions of the law, it should be presumed to be joint and several guarantee liability.

In the case of a general guarantee, the exercise of all creditor's rights should have been stopped in accordance with the provisions of the Enterprise Bankruptcy Law, but in order to protect the interests of creditors, the guarantee law may find a guarantor to bear the guarantee liability according to the circumstances in the question.

Relevant legal provisions: Article 92 of the Enterprise Bankruptcy Law: The reorganization plan approved by the people's court is binding on the debtor and all creditors. If the creditor fails to declare its creditor's rights in accordance with the provisions of this Law, it shall not exercise its rights during the implementation of the reorganization plan; After the implementation of the reorganization plan is completed, the rights may be exercised in accordance with the repayment conditions of the same type of creditor's rights stipulated in the reorganization plan.

The rights of creditors against the debtor's guarantors and other joint debtors are not affected by the reorganization plan.

Article 17 of the Guarantee Law Where the parties agree in the guarantee contract that the guarantor shall bear the guarantee liability when the debtor fails to perform its obligations, 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 is changed, causing major difficulties for the creditor to demand that the debtor 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.

Article 18 Where the parties stipulate in the guarantee contract that the guarantor and the debtor shall be jointly and severally liable for the debt, it shall be a joint and several liability guarantee.

If the debtor of the joint and several liability guarantee fails to perform the debt upon the expiration of the debt performance period specified in the main contract, the creditor may require the debtor to perform the debt, and may also require the guarantor to bear the guarantee liability within the scope of the guarantee.

Article 19 Where the parties have not agreed on the method of guarantee or the agreement is not clear, they shall bear the guarantee liability in accordance with the joint and several liability guarantee.

The direct causes of the large losses of banks in bankruptcy reorganization are as follows:

1. The appraised value of enterprise assets is too low;

2. The rights and interests of shareholders are over-protected.

Countermeasures: 1. In terms of improving the legal system, the first is to further improve the manager system, establish a reorganization supervisor, and further standardize the functions and powers of the manager;

2. Appropriately enhance the rights of creditors in the formulation, approval and implementation of the draft reorganization plan, and further balance the interests and needs of all parties;

3. Prudently use compulsory approval provisions to strengthen the awareness of creditor protection.

1. What are the differences between reorganization procedures and reconciliation procedures?

The reorganization emphasizes the restoration of the enterprise's ability to manage its own property and business affairs, and it is hoped that through the reorganization plan, the enterprise will be able to restore its operational ability during the supervision period and realize its creditor's rights. The reorganization plan should be effective for both the insolvent enterprise and all its creditors. Conciliation, emphasizing the extinguishment of the debt-creditor relationship.

Through the execution of the settlement agreement, the creditor is repaid. Compared with the reorganization plan, the content of the settlement plan is relatively simple, and does not involve the adjustment of the enterprise's business plan. Moreover, the settlement plan is only valid for the debtor and the conciliating creditor.

2. Is there a time limit for the bankruptcy reorganization of the developer?

1. The creditor and the debtor directly submit an Application for Reorganization to the court to initiate the reorganization procedure. Before a creditor applies for bankruptcy liquidation of the debtor and the court declares bankruptcy after accepting the application, the debtor or a contributor with an amount of more than one-tenth of the debtor's registered capital may apply to the court for reorganization. 2. If the court examines the Application for Reorganization and finds that it complies with the provisions of the law, it shall rule on the reorganization of the debtor and make a public announcement.

3. The court appoints an administrator. 4. The court notifies known creditors and announces notice to unknown creditors. The court shall determine the time limit for creditors to declare their claims, and determine the time and place of the first creditor's meeting.

5. The creditor declares the creditor's rights to the administrator, and the administrator shall, after receiving the materials for the declaration of creditor's rights, register and make a register of the declared creditor's rights, review the declared creditor's rights, prepare a creditor's rights table and submit it to the first creditors' meeting for verification. The first creditors' meeting shall be convened within 15 days from the date of expiration of the declaration of creditor's rights. 6. In bankruptcy reorganization, after entering the reorganization period, upon the debtor's application for the approval of the court, the debtor may manage its property and business affairs on its own under the supervision of the administrator, and the administrator shall hand over the property and business affairs to the debtor.

7. The debtor or the administrator shall, within 6 months from the date of the court's ruling, submit the draft reorganization plan to the court and the creditors' conference at the same time. At the request of the debtor or administrator, the court may grant an extension of 3 months. If it fails to submit the case on time, the court shall rule to terminate the reorganization procedure and declare bankruptcy.

Article 92 of the Enterprise Bankruptcy Law: A reorganization plan approved by the people's court shall be binding on the debtor and all creditors.

Legal analysis: (1) The appraised value of enterprise assets is too low.

In practice, it can be seen that the repayment rate of enterprise bankruptcy reorganization is generally the repayment ratio calculated by the enterprise based on the cost of rebirth, and it is not a reasonable value of the enterprise determined in full accordance with the market. Therefore, in the struggle for the interests of all parties involved in the reorganization of an enterprise, financial claims are often placed in a disadvantaged position, acting as a victim to save the enterprise from crisis, and the loss of bank claims is unavoidable. The restructuring value is only slightly higher than the liquidation value.

2) The rights and interests of shareholders are over-protected.

Most of the enterprises that have been reorganized have become insolvent, and in fact, the equity held by the investors has no value. According to the principle of repayment, the equity should be conceded before the creditor's right, and the adjustment of the investor's equity should be greater than the adjustment of the creditor's right. However, under the protection of **, the proportion of most shareholders' equity transfer is lower than the discount ratio of creditors, and the loss of bank claims is higher.

The underlying reason for the emergence of these two problems is that these irrational phenomena can always arise due to the legal system and enforcement operations.

Legal basis: "Enterprise Bankruptcy Law of the People's Republic of China" Article 2 If an enterprise legal person is unable to pay off its debts when due, and its assets are insufficient to pay off all debts or it obviously lacks solvency, it shall settle its debts in accordance with these Regulations.

Where an enterprise legal person has the circumstances provided for in the preceding paragraph, or there is a clear possibility of losing solvency, it may carry out reorganization in accordance with the provisions of this Law.

Hello. 1. The provisions of the Bankruptcy Law on the creditor's rights of employees do not need to be declared, and the list shall be made and publicized after investigation by the administrator after investigation. Where employees have objections to the list records, they may request that the accompanying manager make corrections; If the manager refuses to make corrections, the employee may file a lawsuit in the people's court.

2. The content of the bankruptcy applicationThe bankruptcy application shall contain the following matters: (1) the basic information of the applicant and the respondent; (2) the purpose of the application; (3) The facts and reasons for the application, and (4) the people's court's recognition of the return of the fiber as other matters that should be indicated. 3. ObligationsFrom the date of service of the ruling of the people's court to the debtor on the acceptance of the bankruptcy application to the date of the conclusion of the bankruptcy proceedings, the relevant personnel of the debtor shall bear the following obligations:

1) Properly keep the property, seals, account books, documents, and other materials in their possession and management; (2) Conduct work in accordance with the requirements of the people's courts and managers, and truthfully inquire about them; (3) Attend the creditors' meeting as an observer and truthfully inquire about the creditors; (4) Without the permission of the people's court, they must not leave their place of residence; (5) Shall not be newly appointed as directors, supervisors, or senior managers of other enterprises. 4. Duties to be performed by the administrator (1) Take over the debtor's property, seal, account books, documents and other materials; (2) Investigate the debtor's property status and prepare a property status report; (3) to decide on the internal management affairs of the debtor; (4) to decide on the debtor's daily expenses and other necessary expenses; (5) Before the first creditors' meeting is convened, decide to continue or stop the debtor's business; (6) manage and dispose of the debtor's property; (7) Participate in litigation, arbitration or other legal procedures on behalf of the debtor (8) Propose to convene a creditors' conference; (9) Other duties that the people's court finds the manager should perform. Where this Law has other provisions on the duties of managers, those provisions shall apply.

"Relevant personnel" as used in the preceding paragraph refers to the legal representative of an enterprise; Upon the decision of the people's court, it may include the financial management personnel and other business management personnel of the enterprise.

The direct causes of the bank's large losses in bankruptcy reorganization are: 1. The appraised value of enterprise assets is too low; 2. The rights and interests of shareholders are over-protected. Countermeasures:

1. In terms of improving the legal system, the first is to further improve the manager system, establish a reorganization supervisor, and further standardize the functions and powers of the manager; 2. Appropriately enhance the rights of creditors in the formulation, approval and implementation of the draft reorganization plan, and further balance the interests and needs of all parties; 3. Prudently use compulsory approval provisions to strengthen the awareness of creditor protection. Legal basis: Article 92 of the Enterprise Bankruptcy Law: The lease of the reorganization plan approved by the people's court is binding on the debtor and all creditors.