Zhuhai lawyer, Zhuhai legal consulting, Zhuhai law firm, Jingshi law firm, Jingshi Zhuhai law firm].
Author: Feng Jianbo, a lawyer from Beijing Jingshi (Chongqing) Law Firm.
This article is original by the lawyer of Jingshi (Chongqing) Law Firm, and only represents the author's own point of view.
Rules for adjudication of disputes over the confirmation of ordinary bankruptcy claims
The bankruptcy law implements the survival of the fittest in market entities through legal means, which is of positive practical significance for promoting the overall economic development of society and optimizing the business environmentAt the same time, based on the dual protection of debtors and creditors, the rebirth of some market entities through bankruptcy proceedings is also a way and way to redistribute social wealth.
In bankruptcy proceedings, creditors need to declare their claims to the administrator in accordance with the law, and after the administrator's review, review and confirmation, they will be publicized, and finally they will be fairly compensated according to the nature of the claims and the debtor's asset status. However, not every claim will be confirmed by the administrator, so disputes arise over the recognition of bankruptcy claims.
Adjudication Rule 1: Unqualified contractors shall not have the priority right to be compensated for the project payment.
References:Gansu Provincial High People's Court (2022) Gan Min Zhong No. 516 Tan Yaping, Zhangye Huamei New Energy*** In the civil judgment of the second instance of the dispute over the confirmation of ordinary bankruptcy claims, on the issue of whether Tan Yaping has the priority right to be compensated for the project involved in the case, the court held that although the amount of the project payment between Tan Yaping and Huamei Company was confirmed by the effective mediation document of the people's court, and the two parties reached an agreement on the priority right to be compensated for the project price, the construction project price claim and the priority right to be compensated for the construction project price are two different rights, and it is not natural to enjoy the priority right to be compensated for the construction project price as long as there is a construction project price claim, and the priority right to be compensated for the construction project price is a statutory right, and its exercise has a huge impact on other rights holders, thereforeIt is still necessary to review whether Tan Yaping enjoys the priority right to compensation. In accordance with Article 22 of the Construction Law of the People's Republic of China, "if a construction project is tendered and awarded, the contractor shall award the construction project to the contractor who wins the bid in accordance with the law." If the construction project is directly contracted, the contractor shall contract the construction project to the contractor with the corresponding qualifications" and Article 1 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Construction Contracts (Fa Shi (2004) No. 14, hereinafter referred to as the "2004 Interpretation") In any of the following circumstances, a construction contract shall be deemed invalid in accordance with the provisions of Article 52 (5) of the Contract Law: (1) the contractor has not obtained the qualification of a construction enterprise or has exceeded the qualification level;(2) The actual constructor without qualifications borrows the name of a qualified construction enterprise;(3) The construction project must be tendered but the bidding is not carried out or the winning bid is invalid", the construction contract, the project change visa notice, and the project contract agreement signed by Tan Yaping and Huamei Company are invalid contracts. According to Articles 1 and 4, 25 and 26 of the 2004 Interpretation, the contractor in an invalid construction contract is referred to as the actual constructor. The so-called actual constructor refers to the person who implements the construction of the project after the construction contract of the construction project is found to be invalid. Article 26 of the 2004 Interpretation is based on the need to ensure the realization of the labor remuneration of construction workers and breaks through the principle of relativity of contract, giving the actual contractor the right to directly sue the employer. Therefore, the law stipulates that only the legal contractor has the priority right to be compensated for the price of the construction project. Although Tan Yaping signed a construction contract with China Coal Company and claimed that he had the priority right to be compensated based on his status as a contractor, as mentioned above, Tan Yaping was not a legal contractor in the context of construction law, and the construction safety and quality of the project in the construction of the project were greatly related to the public interest, so if the contractor who did not have the qualifications was given the same rights as the legal contractor, it would obviously be inconsistent with the original intent of the legislation, and would lead to chaos in the construction market, affect the healthy and orderly development of the construction market and the quality of construction projects, and pose a threat to the safety of life and property of the state and the people。 Therefore, Tan Yaping does not have the identity of the entity claiming the priority right to be compensated for the price of the construction project, and his claim cannot be sustained, and this court does not support it.
Adjudication Rule 2: The transferee's lawful claims shall be confirmed when the claims are declared to the administrator.
References:Xinjiang Uygur Autonomous Region High People's Court (2023) Xin Min Zhong No. 90, China 22mcc Group *** Liu Yangyang et al. in the civil judgment of the second instance of the ordinary bankruptcy creditor's rights confirmation dispute, on the issue of whether Liu Yangyang has a creditor's right against Sanshan Cement Company. The court of second instance held that Liu Yangyang's claim against Sanshan Cement Company had already been affirmed by the effective civil judgments of the Henan Provincial High People's Court (2017) Yu Min Zhong No. 469 and the Zhengzhou Intermediate People's Court (2017) Yu 01 Min Chu No. 394. After the judgments of the two cases came into effect, the debtors identified in the judgments did not fully perform the debts confirmed by the effective judgments, so Liu Yangyang's legitimate claims against Sanshan Cement Company were not completely extinguished. At the same time, Articles 545 and 546 of the Civil Code of the People's Republic of China stipulate that a creditor may transfer all or part of a creditor's right to a third party, and if the creditor transfers the creditor's right without notifying the debtor, the assignment shall not be effective against the debtor. In this case, Caitong Company, the original creditor of Sanshan Cement Company, transferred its creditor's rights to Liu Yangyang and notified Sanshan Cement Company in writing, so Caitong Company transferred its creditor's rights to Sanshan Cement Company to Liu Yangyang, which complied with the above-mentioned legal provisions, and Liu Yangyang declared his creditor's rights to Sanshan Cement Company accordingly and confirmed it. 22mcc Company failed to provide relevant evidence sufficient to overturn the facts ascertained in the above-mentioned effective judgment, nor could it prove that Liu Yangyang's above-mentioned claims against Sanshan Cement Company had been completely extinguished, so it held that Liu Yangyang's claim that there was no real and valid creditor's rights against Sanshan Cement Company had no factual and legal basis and was not supported.
Adjudication Rule 3: If a special account is not set up for the performance bond, the creditor does not have the right to withdraw it.
References:The Supreme People's Court of the People's Republic of China (2022) Zui Gao Fa Min Zai No. 55 Ouyang Houjin, Lin Ronggao et al. In the civil judgment of the civil retrial of the dispute over the confirmation of ordinary bankruptcy claims of Ouyang Houjin and others, the Supreme People's Court held that Article 38 of the Bankruptcy Law 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 can be recovered by the right holder of the property through the administrator. "It can be seen that the premise for the creditor to exercise the right of repossession is that it has ownership of the corresponding property, but the property is in the possession of the debtor. Money, as a general category of things, should be subject to the principle of "possession is possession" if it is not specified. It is also necessary to examine whether the "security deposit" can be substantially distinguished from other money in possession by means of the establishment of a special account or other means. Although the "Operation and Management Contract" involved in this case stipulates: "Party B must pay a risk deposit to Party A, which shall be jointly supervised by both parties, and shall be returned to Party B's designated account ...... in a lump sum within one week after the expiration of the contract."However, when the two parties actually performed, Ouyang Houjin paid the deposit of 4,049,000 yuan to the Hebian Coal Mine in batches through bank transfer and cash payment. The parties did not set up a special account for the money, nor did they jointly supervise the money, and the money was subsequently used by the riverside coal mine. Although the 4,049,000 yuan involved in the case is called a security deposit, it is not distinguished from other funds of the Hebian Coal Mine, that is, it has not been specified. Therefore, after receiving the money, Hebian Coal Mine took ownership of the money instead of keeping it on its behalf. Now that the Hebian Coal Mine has entered bankruptcy proceedings, Ouyang Houjin et al. claim the right to recover the 4,049,000 yuan involved in the case lacks factual and legal basis, and this court does not support it.
Lawyer's point of view
Disputes over the confirmation of ordinary bankruptcy claims refer to civil disputes filed with the people's court requesting confirmation of the creditor's rights if the debtor and the creditor have objections to the creditor's rights recorded in the creditor's rights table prepared by the administrator and request the administrator to correct them, but the administrator does not make corrections.
Feng Jianbo, a lawyer at Beijing Jingshi (Chongqing) Law Firm, believes that in ordinary bankruptcy claims confirmation disputes, with regard to the priority of repayment of construction project prices, the priority right to be repaid for construction project prices is a statutory priority, and the original intention of the legislation is to ensure that the wage rights and interests of construction workers can be realized by protecting the contractor's construction project price claims. However, the precondition for the priority right of repayment of the construction project price is that the construction contract is legal and valid, otherwise the priority right of repayment cannot be obtained, and the protection of the creditor's right should not be changed due to the change of the subject of the creditor's right, and allowing the transferee to enjoy the priority of repayment is conducive to the original creditor to obtain a reasonable and sufficient consideration for the transfer of creditor's rights, and is more conducive to the realization of the labor claim of the construction worker.
Whether the creditor's performance bond can be recovered from the administrator needs to be judged according to whether a special account is established, so in commercial activities, it is best to have a third party or a special account to supervise the performance bond.
Lawyer Feng Jianbo,Deputy Director of the Youth Working Committee of Beijing Jingshi (Chongqing) Law Firm, a cutting-edge lawyer, a master of law from a double first-class university, and a national second-level psychological counselor. He has worked as a senior executive of a large enterprise in Urumqi, Xinjiang for many years, and worked in the court for one yearIn recent years, he has participated in a number of bankruptcy reorganization (liquidation) cases, involving more than 100 million yuan, and more than 100 litigation and non-litigation cases in the field of civil and commercial lawHe served as corporate legal counsel for a State-owned Assets Supervision and Administration Commission. At present, he serves as the legal counsel of a number of self-leading enterprises and the public interest lawyer of the online legal service group of Canggou Township, Wulong County.
Intensive legal affairs in the field of civil and commercial law:Marriage and family legal affairs, corporate legal affairs, new ** legal affairs.
Academics, such as "Research on the Bearing of Civil Liability for Third Party Tort in Marriage Relationship", etc., and published hundreds of professional articles on the new ** platform.