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COUNCIL OF
JUSTICES
THE SUPREME PEOPLE’S COURT
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SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
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No.:
03/2016/NQ-HDTP
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Hanoi,
August 26, 2016
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RESOLUTION
GUIDING THE
IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LAW ON BANKRUPTCY
THE COUNCIL OF JUSTICES OF THE SUPREME PEOPLE’S
COURT
Pursuant to the Law on organization of people’s
courts No. 62/2014/QH13 dated November 24, 2014;
In proper and consistent enforcement of a number
of articles of the Law on bankruptcy No. 51/2014/QH13 dated June 19, 2014;
After obtaining the consent from the Chief
Procurator of the Supreme People’s Procuracy and the Minister of Justice.
RESOLVES:
Article 1. Scope
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Article 2. Overseas assets and entities as
referred to in Point a Clause 1 Article 8 of the Law on bankruptcy
1. Overseas assets refer to assets defined in
regulations of the Civil Code and located outside the territory of the
Socialist Republic of Vietnam at the time when the petition for initiation of
bankruptcy proceedings is entertained by the Court.
2. Overseas entities involved in bankruptcy
proceedings consist of:
a) Individuals who are not present in Vietnam at the time the petition for initiation of bankruptcy proceedings is entertained by
the Court;
b) Legal entities that do not have head offices,
branches, representative offices or representatives as referred to by the laws
in Vietnam at the time the petition for initiation of bankruptcy proceedings is
entertained by the Court.
Article 3. Complicated bankruptcy cases as
referred to in Point d Clause 1 Article 8 of the Law on bankruptcy and power to
handle such complicated bankruptcy cases
1. Complicated bankruptcy cases includes bankruptcy
cases other than those mentioned in Points a, b, c Clause 1 Article 8 of the
Law on bankruptcy, and cases where an enterprise or co-operative requested to
initiate bankruptcy proceedings:
a) has at least 300 (three hundred) employees, or
has at least VND 100,000,000,000 (one hundred billion dongs) of charter capital
of;
b) is a credit institution, or a business or
co-operative providing public utility products and services, or a business
servicing national defense and security defined in laws;
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d) has debts guaranteed by the Government or gets
involved in the implementation of international treaties to which the Socialist
Republic of Vietnam is a signatory, or written agreements on investment with
foreign agencies or organizations;
dd) has a transaction subject to any claim for being
declared invalid as referred to in Article 59 of the Law on bankruptcy.
2. Provincial people’s court may, at its discretion
or upon the request of a district or higher-level people’s court, handle any of
the complicated bankruptcy cases as regulated in Clause 1 of this Article for
settlement.
3. Upon the receipt of a petition for initiation of
bankruptcy proceedings for any of the cases regulated in Clause 1 of this
Article, the district people’s court shall, based on regulations in Point c
Clause 1 Article 32 of the Law on bankruptcy, send a written request, enclosed
with the petition for initiation of bankruptcy proceedings and relevant
documents and evidences, to the provincial people’s court having jurisdiction
for consideration, and give written notices thereof to the petitioner for
initiation of bankruptcy proceedings and the people’s procuracy of same level.
4. In case a petition for initiation of bankruptcy
proceedings has been entertained by a district people's court within its
jurisdiction but there is any change in residence or address of an involved
entity or any new fact occurs while handling a bankruptcy case, which makes
that case become one of the cases covered by Clause 1 Article 8 of the Law on
bankruptcy and regulated in Clause 1 of this Article, the district people's
court still remains competence to handle that bankruptcy case.
Article 4. Reference to precedent-establishing
decisions made in similar bankruptcy case as referred to in Clause 14 Article 9
of the Law on bankruptcy
1. In course of settling bankruptcy cases, judges
must consider applying precedents recognized by the Council of Justices of the
Supreme People’s Court as regulated in the Resolution No. 03/2015/NQ-HDTP dated
October 28, 2015 by the Council of Justices of the Supreme People’s Court on
process for selecting, publishing and adopting precedents to similar bankruptcy
cases.
2. Judges may refer to the Court’s bankruptcy
decision, which has been already in force, or case precedents which are
analogous to the case currently being handled, in order to ensure the
consistent application of laws to the handling of bankruptcy cases.
Article 5. Imposition of interim injunctive
relief as referred to in Article 70 of the Law on bankruptcy
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In emergency case, interim injunctive relief may be
adopted at the same time a petition for initiation of bankruptcy proceedings is
filed in order to prevent any serious consequences.
2. The following interim injunctive relief may be
imposed as:
a) Decisions on granting permission to sell
perishable goods, nearly-expired goods, goods unlikely to be consumed unless
sold at the right time such as fresh foods, foods which are easily decomposed
or hardly preserved; combustible, and explosive goods (such as petroleum, oil,
liquefied petroleum gas and other combustible, and explosive substances);
medicines, veterinary drugs and pesticides whose useful life remains less than
60 days; processed foods and other goods whose useful life remain less than 30
days; seasonal goods (such as seasonal consumable goods or goods served in
public holidays or new year's festivals), luxury electronic products
(computers, smart phones) and other goods and/or articles which shall be
damaged, hardly be bought or whose useful life expires if they are not handled
in a timely manner;
b) Decisions on granting permission for harvesting
and selling farm products or other goods/ products in case farm products are at
harvest time or other goods/products are hardly preserved for a long term;
c) Assets of an enterprise/co-operative shall be
distrained if there are grounds that assets may be hided, destroyed or lost, or
deteriorated. In case distrained assets must preserve the status quo and
kept in a sufficient and secret way, the distrainment and sealing must be
executed at the same time.
Distraining and sealing-up assets must be
documented and distrained and sealed assets shall be managed by the entity that
is requested to initiate bankruptcy proceedings, or asset management officer,
or asset management enterprise, or the person who has the legal right to own
and use such assets, or those in the custody of a competent civil judgment
enforcement agency (if such assets are kept at a competent civil judgment
enforcement agency) until a court’s decision is made;
d) Decision on blockage of bank accounts of an
entity is made when that entity has accounts opened at banks, state treasuries
and/or other credit institutions;
dd) Decision on blockage of assets kept by a
custodian is made in case an entity's assets are being maintained by another
entity;
e) Decision on sealing of store and/or fund,
seizure and management of accounting books and relevant documents is made in
cases where the store and/or fund, keeping and management of accounting books
and relevant documents must be kept unchanged;
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h) Decision on prohibition from change in current
conditions of assets of an insolvent entity is made if there are grounds that
the disassembling, assembling or other acts are executed to make change in
current conditions of such assets resulting in deterioration of assets;
i) Decision on prohibiting other relevant entities
from performing certain acts or forcing them to do certain acts is made when
there are grounds that their acts may cause influence on the bankruptcy case
and/or legitimate rights and interests of involved entities;
k) Decision on compelling the employer to advance
the salaries, wages, compensation, and occupational accident or disease
benefits to the employees is made in necessary case to protect legitimate
rights and interests of the employees with respect to their salaries, wages,
compensation, and occupational accident or disease benefits as referred to by
laws on labour, and occupational safety and hygiene;
l) Decision on imposition of other interim
injunctive relief as referred to by laws is made if such measures are referred
to by laws other than regulations in Points a, b, c, d, dd, e, g and h Clause 1
Article 70 of the Law on bankruptcy.
3. Procedures for imposition, change, cancellation
or implementation of interim injunctive relief; effect of decisions on
imposition, change, cancellation or implementation of interim injunctive
relief; complaints and handling of complaints about decisions on interim
injunctive relief shall be governed by laws on bankruptcy, civil procedures and
civil judgment enforcement.
4. The court shall make a decision on cancelation
of interim injunctive relief in the following cases:
a) The grounds for imposition of interim injunctive
relief are invalid;
b) The court makes a decision on refusal to
initiate bankruptcy proceedings;
c) The court makes a decision on suspension of
bankruptcy proceedings;
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dd) The cancelation is made at the request of the
requester for imposition of interim injunctive relief;
e) A decision on imposition of interim injunctive
relief is made inconsistently with the laws.
5. Responsibility for improper imposition of
interim injunctive relief:
a) The person requesting the court to employ
interim injunctive relief shall assume responsibility under the law for his/her
request. If the improper imposition of interim injunctive relief causes damage
to the entity who is liable to such measures or the third party, the requester
for such interim injunctive relief must make compensation as referred to by the
civil laws;
b) The court that improperly imposes interim
injunctive relief and causes damage to the entity being liable to such measures
or the third party must make compensation as referred to in Clause 2 and Clause
3 Article 113 of the Civil Code;
c) Entities committing violations against the law
during the imposition of interim injunctive relief shall be handled as referred
to in Article 129 of the Law on bankruptcy.
Article 6. Decisions to declare credit
institutions bankrupt as referred to in Article 104 of the Law on bankruptcy
1. Within 30 days from the day on which the asset
management officer or the asset management enterprise makes a complete lists of
creditors and debtors and the inventory of assets of a credit institution, the
judge (or a group of judges) must perform the following acts before a decision
is made to declare a credit institution bankrupt:
a) Verify the lists of creditors and debtors and
the inventory of assets of that credit institution to ensure that they are
properly prepared as referred to in Articles 64, 65, 67 and 68 of the Law on
bankruptcy;
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2. A decision to declare a credit institution
bankrupt must include contents referred to in Article 108 of the Law on
bankruptcy and decision on the repayment of special loans to the State Bank of Vietnam
or other credit institutions (if any).
3. Within 10 working days from the date on which a
decision to declare a credit institution bankrupt is made, this decision must
be sent to the State Bank of Vietnam and its branch in province or city where that
credit institution’s head office is located. At the same time the sending an
announcement of decision on declaration of bankruptcy must be carried out as
referred to in Article 109 of the Law on bankruptcy.
Article 7. Effect
1. This resolution has been approved by the Council
of Justice of the Supreme People’s Court on August 01, 2016, and shall take
effect as of September 16, 2016.
2. Petitions for initiation of bankruptcy
proceedings which have been entertained by the Court before the effective date
of this resolution but are still pending shall be governed by this resolution.
This resolution shall not be used as the basis for
making appeals against decisions to declare enterprise/co-operatives bankrupt
that took effect before the effective date of this resolution.
ON BEHALF OF
THE COUNCIL OF JUSTICES
CHIEF JUSTICE
Nguyen Hoa Binh
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