What are the properties that are not part of the bankruptcy estate

According to the provisions of China's bankruptcy law, the bankruptcy estate shall include the following parts:

1. All the property owned by the bankrupt enterprise at the time of acceptance of the bankruptcy application.

1. Tangible property;

2. Intangible property;

3. Currency and valuable**;

4. Investment income. <>

2. Property acquired by the bankrupt enterprise after the acceptance of the bankruptcy application and before the conclusion of the bankruptcy proceedings.

1. Property acquired as a result of the liquidation of the debtor of the bankrupt enterprise and the return of the property holder.

2. Property acquired due to the continued performance of the unfulfilled contract.

3. Income generated by the investment rights and interests enjoyed by the bankrupt enterprise.

4. Fruits arising from the bankruptcy estate.

5. Income from continued business during the liquidation period.

6. Property acquired for other legitimate reasons, such as compensation obtained due to infringement of the patent right of the bankrupt enterprise by others. <>

3. Other property rights that should be exercised by the bankrupt enterprise.

1. The real rights that should be exercised by the bankrupt enterprise, including ownership, management rights, use rights, mining rights, possession rights, mortgage rights, lien rights, etc.;

2. Contractual claims that should be exercised by the bankrupt enterprise, such as the right to claim for the arrears of the sales customer and the liquidated damages and compensation arising from its breach of contract;

3. The right of negotiable instrument that should be exercised by the bankrupt enterprise, such as the right of payment request and recourse enjoyed by the bankrupt enterprise as the holder of the negotiable instrument;

4. Shareholder rights that should be exercised by the bankrupt enterprise;

5. Intellectual property rights enjoyed by bankrupt enterprises;

6. If the registered capital of the founder of the bankrupt enterprise is insufficient, the founder shall make up for it, and the part of the compensation shall belong to the bankruptcy estate;

7. Due to the erroneous execution of the property of the bankrupt enterprise, the property after the execution of the reversal shall be listed as the bankruptcy estate; <>

8. If the bankrupt enterprise obtains the right of subrogation in accordance with the law, the creditor's rights enjoyed under the right of subrogation shall be included in the bankruptcy estate;

9. The unexpired creditor's rights of the bankrupt enterprise at the time of being declared bankrupt shall be regarded as the due creditor's rights and shall be included in the bankruptcy estate, but the undue interest shall be deducted;

10. The mortgage, lien and pledge of the obligee who waives the priority of repayment or the mortgage, lien and pledge of the remainder of the secured claim shall also be incorporated into the bankruptcy estate.

According to the provisions of the Enterprise Bankruptcy Law and the Provisions on Several Issues Concerning the Trial of Enterprise Bankruptcy Cases, the main items that do not belong to bankruptcy are:

1. Property in the possession of the debtor but the ownership of another person.

According to the relevant provisions of the bankruptcy law, the true owner of such property may exercise the right of recovery when the debtor becomes bankrupt and is not bound by the bankruptcy proceedings. In practice, this type of property is mainly manifested in the possession and use of other people's property by the debtor based on legal relationships such as warehousing contracts, custody contracts, processing contracts, entrusted transactions, consignment sales, borrowing, depositing, and leasing.

2. Collateral and subrogation of collateral.

If the debtor's property is subject to security interests, such as mortgages, pledges and liens, then these properties no longer belong to the bankruptcy estate in accordance with the provisions of China's bankruptcy law, but the collateral of the remaining part after the guarantor waives the priority right to repayment or preferentially pays the secured claim still belongs to the bankruptcy estate.

The security interest is subrogated, so the insurance money, compensation, compensation and other subrogated items generated after the loss of the collateral are still the secured property, and the guarantor still has the priority right to be compensated for this part of the property. Therefore, if the collateral is compensated after the loss of the collateral at the time of the bankruptcy declaration, then this part of the compensation property is not part of the bankruptcy estate.

3. Property with statutory priority, except for the right holder's waiver of the right of priority for repayment or priority for the repayment of the remaining part of the specific creditor's right.

Statutory priority arises in accordance with the law, but cannot arise in accordance with the agreement. The legal priority holder has a similar priority to repayment in accordance with the law and a security interest, so with reference to the provisions of the Bankruptcy Law that the collateral is not part of the bankruptcy estate, the property with statutory priority should not be included in the scope of the bankruptcy estate. For example, in the construction project contract stipulated in Article 286 of the Contract Law of the People's Republic of China, the contractor has the priority right to the project payment for the project to be constructed.

Since the amount of claims protected by statutory priority is usually lower than the value of the property with statutory priority, the common practice in practice is to divide the price of the property after it is realized by auction, and give priority to the repayment of the claims protected by the statutory priority, and the remaining part is included in the bankruptcy estate.

4. Property whose ownership has been transferred or whose ownership should be transferred to another person.

Legal analysis: 1. The exclusive property and land resources of the state or the property that cannot be circulated by law. 2. Secured creditor's rights. 3. Public welfare and welfare facilities set up by enterprises. 4. Although it belongs to the possession and use of the bankrupt enterprise, the ownership does not belong to the property of the bankrupt enterprise.

Legal basis: Article 31 of the Bankruptcy Law of the People's Republic of China stipulates that the administrator has the right to request the people's court to revoke the following acts involving the debtor's property within one year before the people's court accepts the bankruptcy application: (1) the transfer of the property that is missing from the auction free of charge; (2) Conducting transactions at an obviously unreasonable level; (3) providing financial security for debts that are not secured by property; (4) Paying off undue debts in advance; (5) Waiver of creditor's rights.

1. Insurance money, compensation, compensation and other subrogation arising after the loss of collateral;

2. In the sale and purchase of specific things, the specific things that have not yet been transferred to possession but have been fully paid by the counterparty;

3. The property that has not yet gone through the property right certificate or property right transfer procedures but has been delivered to the buyer;

4. Property whose ownership is exclusive to the state and cannot be transferred;

5. Property owned by the union of bankrupt enterprises;

6. Others.

According to the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Enterprise Bankruptcy Cases, the following property is not a bankruptcy estate: (1) the property of another person in possession or use by the debtor based on legal relationships such as warehousing, storage, processing contracting, entrusted transactions, consignment sales, borrowing, depositing, leasing, etc.; (2) Collateral, lien or pledge, except where the obligee waives the right of priority for repayment or gives priority to the repayment of the remaining part of the secured creditor's right; (3) Insurance money, compensation, compensation and other subrogation arising after the loss of collateral; (4) Property with priority in accordance with the provisions of law, except for the part of the remaining part of the right holder that waives the right of priority for repayment or gives priority to the repayment of the specific creditor's rights; (5) In the sale and purchase of specific items, the possession of the specific items has not yet been transferred, but the counterparty has fully paid the consideration; (6) Property that has not yet gone through the formalities of property right certificate or property right transfer but has been delivered to the buyer; (7) Property that the debtor has not yet acquired ownership in the sale of retention of title; (8) property whose ownership is exclusive to the State and may not be transferred; (9) The property owned by the bankrupt enterprise's trade union.

1) The debtor occupies or uses the property of others based on the legal relationship of warehousing, storage, processing contracting, entrusted transaction, consignment sales, borrowing, deposit, leasing, etc. (2) Collateral, lien confiscation and disposal, except for the right holder who waives the right of priority for repayment or gives priority to the repayment of the remaining part of the secured claim. (3) Subrogation such as insurance money, compensation, and compensation money arising from the loss of collateral.

4) Property with priority in accordance with the law, except for the waiver of the right holder of the right to preferential repayment or the priority of repayment of the remaining part of the specific creditor's right. (5) In the sale and purchase of specific things, the possession of the specific things has not been transferred but the counterparty has fully paid the consideration. (6) Property that has not yet gone through the procedures for the transfer of property rights or property rights but has been delivered to the buyer.

7) Property in which the debtor has not yet acquired the title of the dusty in the sale of retention of title. (8) Property whose ownership is exclusive to the State and cannot be transferred. (9) Property owned by the trade union of the bankrupt enterprise.

Legal basisEnterprise Bankruptcy Law of the People's Republic of China

Article 7 Under the circumstances provided for in Article 2 of this Law, the debtor may apply to the people's court for reorganization, reconciliation, or bankruptcy liquidation. If the debtor is unable to pay off the debts due, the creditor may apply to the people's court for reorganization or bankruptcy liquidation of the debtor. If the enterprise legal person has been dissolved but has not been liquidated or has not been liquidated, and its assets are insufficient to pay off its debts, the Chatan person who bears the responsibility for liquidation in accordance with the law shall apply to the people's court for bankruptcy liquidation.

Those that are not part of the estate are:

1) The debtor's property in possession or use based on legal relationships such as warehousing, safekeeping, processing contracting, entrusted transactions, consignment sales, borrowing, depositing, and leasing at closed banquets;

2) collateral, lien and disposition, except for the obligee who waives the right of priority for repayment or gives priority to the repayment of the remaining part of the secured claim;

(3) Subrogation such as insurance money, compensation, and compensation money arising from the loss of collateral.

4) Property with priority in accordance with the law, except for the waiver of the right holder of the right to preferential repayment or the priority of repayment of the remaining part of the specific creditor's right.

5) In the sale and purchase of specific things, the specific goods that have not yet been transferred to the first possession of the transfer, but the counterparty has fully paid the consideration;

(6) Property that has not yet gone through the procedures for the transfer of property rights or property rights but has been delivered to the buyer.

7) property for which the debtor has not yet acquired ownership in a retention-of-title sale;

(8) Property whose ownership is exclusive to the State and cannot be transferred.

(9) Property owned by the trade union of the bankrupt enterprise.

1. Whether the collateral in the Civil Code can be used as bankruptcy property.

The Civil Code does not stipulate whether the collateral can be used as bankruptcy and bankruptcy, while the Enterprise Bankruptcy Law stipulates that if an enterprise recovers the mortgaged property after repaying its debts, the mortgaged property belongs to the bankruptcy estate.

Enterprise Bankruptcy Law of the People's Republic of China

All the property belonging to the debtor at the time of acceptance of the bankruptcy application, as well as the property acquired by the debtor after the acceptance of the bankruptcy application and before the conclusion of the bankruptcy procedure, shall be the property of the debtor.

Article 31 Within one year before the people's court accepts the bankruptcy application, the manager has the right to request the people's court to revoke the following acts involving the debtor's property:

1) Transferring property without compensation;

(2) Conducting transactions at an obviously unreasonable level;

3) providing property security for debts that are not secured by property;

(4) Paying off undue debts in advance;

(5) Waiver of creditor's rights.

Article 37 After the people's court accepts the bankruptcy application, the manager may take back the pledge or lien by paying off the debts or providing a guarantee acceptable to the creditors.

In the case of debt repayment or substitution of security provided for in the preceding paragraph, when the value of the pledge or lien is lower than the amount of the secured creditor's right, the market value of the pledge or lien at that time shall be limited.

The property that is not part of the bankruptcy estate is as follows:

1. Property that is in the possession and use of the bankrupt enterprise and does not enjoy ownership;

2. Public welfare and welfare facilities set up by bankrupt enterprises;

3. Other circumstances that are not attributable to the bankruptcy property of the bankrupt enterprise.

According to Article 30 of the Enterprise Bankruptcy Law, all the property belonging to the debtor at the time of acceptance of the bankruptcy application, as well as the property acquired by the debtor after the acceptance of the bankruptcy application and before the conclusion of the bankruptcy proceedings, shall be the property of the debtor.

Article 38 stipulates that after the people's court accepts the bankruptcy application, the property in the possession of the debtor that does not belong to the debtor may be recovered by the right holder through the administrator. However, except as otherwise provided in this Law.

1. What are the prerequisites for the court to declare the debtor bankrupt ex officio?

Under certain conditions, the court may declare the debtor bankrupt ex officio. The court must discover that the debtor's assets are insufficient to satisfy all claims during the "enforcement process" before it can declare bankruptcy ex officio. As long as the court finds that the debtor's property is insufficient to pay off all the claims and has reached bankruptcy status during the enforcement process, it can declare the debtor bankrupt ex officio.

Article 107 of the Enterprise Bankruptcy Law stipulates that if a people's court declares a debtor bankrupt in accordance with the provisions of this Law, it shall serve it on the debtor and the administrator within 5 days from the date of making the ruling, and notify the known creditors within 10 days from the date of the ruling, and make a public announcement. After the debtor is declared bankrupt, the debtor is called the bankrupt, the debtor's property is called the bankruptcy estate, and the creditor's rights enjoyed by the people's court against the debtor when accepting the bankruptcy application are called bankruptcy claims.

2. What are the conditions that need to be met by creditors to declare their claims?

The following conditions must be met for a creditor to declare a claim:

1. It must be a claim with the content of property payment. The right to claim that the subject matter of payment is labor or omission. They cannot be declared, but the right to claim compensation arising from their non-performance or improper performance is a claimable claim.

2. It must be a claim based on the debtor's property. The debtor's property here refers to the property that is subject to the insolvency proceedings. Therefore, trust property or property that is not subject to bankruptcy proceedings under the law is not the debtor's property referred to herein; The right to claim on the basis of compensation based on these properties may be declared without disorder.

As to whether the property to which the claim refers is the general property of the debtor or the specific property, it does not affect the eligibility to declare. As a result, claims secured by property and claims unsecured by property are included in the declaration.

3. It must be a creditor's right against the debtor established before the court accepts the bankruptcy application. As for the maturity time of the creditor's right, it does not affect the declaration qualification; According to the provisions of the Bankruptcy Law, the unexpired creditor's rights shall be deemed to have expired when the bankruptcy case is accepted.

Article 30 of the Enterprise Bankruptcy Law.

All the property belonging to the debtor at the time of acceptance of the bankruptcy application, as well as the property acquired by the debtor after the acceptance of the bankruptcy application and before the conclusion of the bankruptcy proceedings, are the property of the debtor.

Article 38.

After the people's court accepts the bankruptcy application, the property in the possession of the debtor that does not belong to the debtor may be recovered by the right holder through the administrator. However, except as otherwise provided in this Law.