Tiếng Việt| THE NATIONAL ASSEMBLY | SOCIALIST REPUBLIC OF VIET NAM |
| No. 30-L/CTN | Hanoi, December 30, 1993 |
The Government issues concrete regulations on the implementation of this Law in regard to enterprises directly servicing defence, security and important public services.
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In this Law, terms below are understood as follows:
1. A "secured creditor" is a creditor whose loan is secured by the property of the indebted enterprises.
2. "Partially secured creditor" is a creditor whose loan is secured by property of the indebted enterprises, but the value of this property is less than value of the loan.
3. "Unsecured creditor" is a creditor whose loan is not secured by property of the indebted enterprises.
4. "Legal representative of the enterprise" is a person empowered by the enterprise's owner in accordance with the provisions of law.
2. The enforcement office for judgements under the Department of Justice, and the department for enforcement of civil judgements under the Ministry of Justice have jurisdiction to implement the decision on an enterprise's bankruptcy declaration.
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PROCEDURE OF SUBMISSION AND CONSIDERATION OF APPLICATIONS FOR AN ENTERPRISE’S BANKRUPTCY DECLARATION
2. The application for enterprise bankruptcy declaration must specify:
a. Name, surname of the applicant;
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3. The application must be accompanied by a copy of the demand bill and documents pointing out the enterprise's inability to pay mature debts.
4. The applicant must pay fees in advance as stipulated by law.
2. The application must specify:
a. Name and head office of the enterprise; name and surname of the enterprise's owner or enterprise's legal representative;
b. Measures carried out by the enterprise which could not overcome the unability to pay mature debts;
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3. The applicant must pay fees in advance as stipulated by law.
The owner of the enterprise or the legal representative of the enterprise and the applicant are obliged to fully supply evidence and necessary documents as required by the court during the settling of the enterprise's bankruptcy declaration and are responsible for the accuracy of these materials.
During the 7 days from the day of receiving and examining an application, the court must notify in writing the indebted enterprise with a copy of the application and relevant documents accompanying.
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1. Keep unchanged the decision of the president of the Economic Court of Provincial level.
2. Cancel the decision of the president of the Economic Court of Provincial level and request it to reconsider. During the 7 days from the day the president of the People's court of Provincial level has made its decision, the president of the Economic Court must issue a new decision. This decision must be sent to the president of the People's court of Provincial level and concerned parties. During the 15 days from the day of receiving the new decision of the president of the Economic Court, if the parties still petition, within 7 days the president of the People's court of Provincial level must consider and make a decision. The decision of the president of the People's court of Provincial level is effective to be carried out.
PROCEDURE FOR SETTLING A REQUEST FOR AN ENTERPRISE�S BANKRUPTCY DECLARATION
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Depending on the character of each specific matter, the president of the Economic court of Provincial level appoints a judge or a group of 3 judges (hereafter generally called the judge) and a Property Management Committee to settle the request for the enterprise's bankruptcy declaration. In the event of appointment of three judges one of them is assigned to be in charge.
The membership of the Property Management Committee is composed of: the cadres of the Economic court of Provincial level, the executive members of the Office for enforcement of judgement under the Department of Justice, representatives of the creditors, representatives of the indebted enterprises, representatives of the trade unions or labourers in a place having no trade union organizations, specialists of the financial bodies, provincial banks and other specialized branches. The Property Management Committee is headed by a cadre of the Economic court of Provincial level.
The work plan of the group of judges is determined by the president of the Supreme People's Court, the organizational and operational order of the Property Management Committee is determined by the Government after agreement with the Supreme People's Court.
The decision to begin the settling procedure of the request for an enterprise's bankruptcy declaration must be published in a local newspaper where the head office of the enterprise is located and in a central newspaper in three consecutive issues.
1. The judge has the following obligations and rights:
a. To gather materials and evidences to create a file for settling the request for the enterprise's bankruptcy declaration;
b. To supervise and control the activities of the members of the Property Management Committee;
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d. To organize and chair conferences of the creditors;
e. To make the decision to cease temporarily or cease the settlement of the request for the enterprise's bankruptcy declaration;
g. To declare the enterprise bankrupt;
2. During the settling of the request for the enterprise's bankruptcy declaration, if indications of crime are revealed, the judge supplies the information to the Office of People's Prosecutor of similar level for prosecution of criminal liability.
3. The judge is responsible to the president of the People's court of Provincial level for implementing his or her obligations and rights.
The Property Management Committee has the following rights and obligations:
1. Compile the list of all assets of the enterprise;
2. Supervise and control the management of the enterprise's property. In case of necessity, it has the right to require the judge to decide to apply temporary urgent measures to preserve the remaining assets of the enterprise;
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The Property Management Committee is responsible to the judge for the implementation of its obligations and rights.
2. From the day of receiving the decision to begin the settling procedure for the request for the enterprise's bankruptcy declaration, the indebted enterprise is strictly prohibited from carrying out the following matters:
a. To hide or disperse assets of the enterprise;
b. To give as security, to mortage, to cede or to sell assets of the enterprise or to pay secured debts by means of assets of the enterprise without the consent in writing of the judge;
c. To pay any unsecured debt to any creditor.
Newly arising debts from the business activity of the enterprise after the decision to begin the settling procedure of the request for an enterprise's bankruptcy declaration are resolve as stipulated in Article 23 of this Law.
d. To refuse or reduce the right to demand debts.
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g. To sell, or exchange the shares or to transfer the right to ownership of the assets of the enterprise.
1. Immovable and movable property of the enterprise at the current time;
2. Money or invested property, joint ventures, associations with other persons, enterprises or other organization;
3. Money or property of the enterprise that is borrowed or appropriated by other individuals or business enterprises.
4. Property which the enterprise is renting or lending.
5. Rights to property.
Property of a private business enterprises includes also the property of the owner of the private business enterprise which is not used in business.
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Conciliation measures and for business reorganization must contain concrete methods and implementations steps: they must also have a debt paying schedule for creditors and wages for employees.
Conciliation measures and solutions for the business reorganization of the enterprise must be submitted to the judge during the 60 days from the day of his request. By the end of this term, if no conciliation measure is found, the judge declares the enterprise bankrupt and organizes the meeting of the creditors to discuss measures for dividing remaining property value of the enterprise.
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Section II. MEETING OF THE CREDITORS
The meeting of the creditors has the following rights and obligations:
1. To examine and approve the conciliation measures to reorganization the business activity of the enterprise;
2. To discuss with and propose to the judge the division of the remaining property value of the enterprise if a conciliation measures has not been achieved or approved.
A creditor may empower in writing the another person to participate in the meeting of the creditors; an empowered person has the same rights and obligations as a creditor.
Only the unsecured or partly secured creditors have the voting right at the meeting of the creditors.
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The creditors whose part of debt is covered by the guarantor are allowed to participate in the division of the remaining property value of the indebted enterprise in proportion to amounts of the unpaid debt.
The invitations must be accompanied by copies of the conciliation measures and the solutions for the business reorganization of the enterprise.
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The report of a successful conciliation for the solution of the business reorganization of the enterprise will be valid legally only when it is approved by more than half of the creditors representing of at least 2/3 of the total of the unguaranteed debts. The report of the successful conciliation must specify the agreed issues and contain and the signatures of the judge and the creditors participating in the meeting. Based on the report of the successful conciliation, the judge makes a decision to suspend temporarily the settlement of the request for the enterprise's bankruptcy declaration. The agreements in the report the successful conciliation are compulsory for all creditors and indebted enterprises.
The meeting of the creditors may be postponed one time in cases of:
1. Absence of more than half of the creditors representing of at least 2/3 of the total of the unsecured debts;
2. Vote of the majority of the creditors at the meeting for postponed the meeting.
The decision to approve the conciliation measure and solution for the business reorganization of the enterprise at this meeting will be valid legally with the consent of creditors representing of at least 2/3 of the total of the unguaranteed debts of the creditors present.
The agreements in the report of the successful conciliation of the meeting are compulsory for all creditors and indebted enterprises.
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The crediators are obliged to carry out the agreements of the meeting of the creditors and to supervise the implementation of these agreements by the enterprises.
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The Judge makes the decision to declare an enterprise bankrupt in the following cases:
1. The owner or the legal representative of the enterprise have not found conciliation measure and the solutions for the business reorganization of the enterprise as stipulated in Article 20 of this Law.
2. The owner or the legal representative of the enterprise does not implement the regulations in Article 28 of this Law;
3. The meeting of the creditors does not approve the conciliation measure and the solution for the business reorganization of the enterprise;
4. The term for the business reorganization of the enterprise ends but the enterprise still fails to carry on business effectively and the creditors require the enterprise to be declared bankrupt.
5. During the reorganization of the business the enterprise violates seriously the agreements of the meeting of the creditors and the creditors request the bankruptcy declaration;
6. During the settling of the enterprise's bankruptcy the owner of a private enterprise runs away or dies and the successor refuse to succeed or there is no the successor.
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1. Name of the court, name, surname of the Judge dealing with the settlement of the request for the enterprise's bankruptcy declaration.
2. Date and reception number of the application for the enterprise's bankruptcy declaration.
3. Name and address of the enterprise to be declared bankrupt.
4. Date of the enterprise's bankruptcy declarations.
5. Reason for the enterprise's bankruptcy declaration.
6. Measures for dividing the property value of the enterprise.
This Decision must be sent to the creditors, the enterprise declared bankrupt and the Office of People's Prosecutor at the same level.
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1. Fees, expenses as stipulated by law for the settlement of enterprise's bankruptcy;
2. Wage, debts, work leave allowances, social insurance as stipulated by law and other interests as agreed upon in the collective labour agreement and signed labour contracts.
3. Tax debts;
4. Debts to the creditors in the list of the creditors:
a. If the remaining property value of the enterprise is sufficient to cover the debts of the creditors, each creditor is paid fully for their debts;
b. If the remaining property value of the enterprise is not sufficient to cover the debts of the creditors, each creditors is paid only partly for their debts in corresponding proportion.
5. If there will be a surplus from the remaining property value used to cover fully the debts of the creditors, this surplus will belong to:
a. The owner of the enterprise if it is a private enterprise;
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c. The State Budget if it is a State enterprise.
In case of complaint or appeal, during the 5 days from the day of receiving the complaints or appeals, the Judge having made the decision on the enterprise's bankruptcy declaration must send the file on the enterprise's bankruptcy to the court of appeal under the Supreme People's Court.
2. During the 60 days from the day of receiving the file on the enterprise's bankruptcy, a group composed of 3 judges and appointed by the president of the Court of Appeal under the Supreme People's Court settles completely the complaints or appeals. The Decision of the Court of Appeal under the Supreme People's Court is final.
A copy of the decision on the enterprise bankruptcy declaration must be sent to:
a. The office for enforcing civil judgements under the Department of Justice;
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c. The Office of People's Prosecutor and financial labour organs at the same level;
d. The organ issuing licence on enterprise's establishment.
As for office for enforcement of judgements, the decision on the enterprise's bankruptcy declaration sent to it must be accompanied by copies of the decision on the enterprise's bankruptcy declaration and documents necessary for the implementation of this Decision.
The Judge of the Economic Court must supervise the transfer of the assets, documents and, materials concerned between the Property Management Committee and the Property Liquidation Committee.
IMPLEMENTATION OF THE DECISION ON AN ENTERPRISE'S BANKRUPTCY DECLARATION
2. The head of the Enforcement office for judgements appoints the executives in charge of implementing the enterprise's bankruptcy declaration; makes the decision of the establishment of the Property Liquidation Committee and controls and supervises the activity of the Property Liquidation Committee.
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a. The executives and cadres of the office for enforcement of judgements;
b. The representatives of the financial and banking bodies at the same level;
c. The representatives of the creditors and trade unions or of the labourers in places having no trade unions;
d. The representative of the bankrupt enterprise;
The members of the Property Management Committee may be appointed to take part in the Property Liquidation Committee.
The Property Liquidation Committee is headed by a group leader who is a member of the committee.
The organizational and active order of the Property Liquidation Committee is decided by the Government.
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2. Implement measures for dividing assets according to the decision on the enterprise's bankruptcy declaration of the Judge.
3. Make a decision to block accounts of the bankrupt enterprise in banks, to open new bank accounts to deposit money received from the taking back of loans of the bankrupt enterprise and from the selling by auction of assets of the bankrupt enterprise.
The executive is responsible to the head of the Office for enforcement of judgement during the implementing his own obligations and rights.
The Property Liquidation Committee has the following obligations and rights:
1. Receive surrendered assets and relevant materials and documents from the Property Management Committee.
2. Take back and manage all assets, documents, accounting books and stamps of the bankrupt enterprise.
3. Find out and request the executive's permission to take back the assets of the enterprise or the property value or the difference in the property value of the enterprise sold or transferred illegally as stipulated in Article 45 of this Law. The property liquidation committee takes back property, property value and the difference according to the decision of the executive.
4. According to the decision of the executive, the Property Liquidation Committee organizes the sale by auction of the enterprise�s assets. The sale by auction must be affirmed by the state notary office. If assets to be sold complete equipment, it is sold completely and is sold in retail only in the case of the failure of the complete sale. The auction of asset and the settlement of the right to the land use of the enterprise must strictly observe the law;
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6. Carry out payment in accordance with the enterprise's bankruptcy declaration by the Judge.
a. To disperse and hide the assets of the enterprise in whatsoever forms;
b. To pay unmatured debts;
c. To refuse the right to require a debts into a secured debts;
d. To transform an unsecured debts into a secured debts;
e. To sell the assets of the enterprise at a rate lower than their genuine value.
2. Before taking back the property or the difference in the property value of the enterprise declared bankrupt, the Property Liquidation Committee is obliged to present the decision of the court, to explain clearly the reason for taking back the property or the difference in property value to the person concerned. Deputes concerning the taking back of property or the difference in property value of the enterprise are decided by the court.
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In case of advance payment by the enterprise, before the tenancy term expires, the owner of the property only can be get back the property after paying back the amount of rent left excess for the time not used up so that the Property Management Committee could include it into the remaining property of the enterprise.
1. To preserve intact the decision of the head of the Office for enforcement of judgements under the Department of Justice;
2. To cancel the decision being petitioned against and assign it to the head of the Office for enforcement of judgements for resolution again;
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a. To commit actions which are strictly prohibited as stipulated in Article 18 of this Law or other dishonest actions during the settling of the request for the enterprise's bankruptcy declaration.
b. To make a threat or commit other actions to force the enterprise to apply for a bankruptcy declaration.
c. To do harm to or to destroy the property of the enterprise purposely.
2. During the settling of the enterprise's bankruptcy if the judge, members of the Property Management Committee, executive members, members of the Property Liquidation Committee violate the regulations of this Law and other provisions of law, according to the level of lightness or seriousness, they are to be disciplined administratively or prosecuted for criminal responsibility in accordance with the law.
2. The director, chairman and members of the management broad of the enterprise which has become bankrupt in the following cases are not covered by point 1 of this Article:
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b. The director, chairman and members of the management board do not directly bear responsibility for the bankruptcy of the enterprise.
c. The director or chairman of the management board have submitted voluntarily an application for the enterprise's bankruptcy declaration in accordance with law and have covered in full the debts to the creditors.
The present Law comes into force from July 1, 1994.
Previous regulations contrary to the present Law are abrogated.
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The present Law was passed on December 30, 1993 by the National Assembly of the 9th Legislature, 4th Session of the Socialist Republic of Vietnam.
(This translation is for reference only)
THE NATIONAL ASSEMBLY
CHAIRMAN
Nong Duc Manh
- 1 Decree No. 50-CP of August 28, 1996, of the Government on the establishment, reorganization, dissolution and bankruptcy of state enterprises
- 2 Decree no 189-CP of December 23, 1994 guiding the implementation of the law on business bankruptcy promulgated by the Government
- 3 1992 Constitution of the Socialist Republic of Vietnam
- 1 Decree No. 38-CP of April 28, 1997, amending and supplementing a number of articles of Decree No.50-CP of August 28, 1996 of the Government on the establishment, reorganization, dissolution and bankruptcy of state enterprises
- 2 Decree No. 50-CP of August 28, 1996, of the Government on the establishment, reorganization, dissolution and bankruptcy of state enterprises