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The "voluntary deduction" carried out by the bank within six months before the acceptance of the bankruptcy application constitutes individual repayment and should be revoked - the appellant, Industrial and Commercial Bank of China Co., Ltd., Heze City Central Branch, and Shandong Fangmingbangjia Pharmaceutical***, a dispute over a request to revoke individual repayment
Summary of the referee]::
The Higher People's Court of Shandong Province held that the key to judging whether the bank's deduction should be revoked lies in whether the debtor's bankruptcy estate has been reduced as a result of the act. In this case, although there is a certain difference in form between the ICBC City Sub-branch and Fangming Company's voluntary repayment, it essentially contains the debtor's intention to repay the debt in a pre-approved manner, which is not completely divorced from the debtor's willingness to repay, which objectively causes the reduction of Fangming's property and damages the interests of other creditors to be repaid equally, which is an "individual repayment act" and should be revoked in accordance with law.
Case No.: (2020) Lu Min Zhong No. 553.
Where a creditor who has not declared the underlying creditor's rights and directly sues for continued performance of the house purchase agreement, it constitutes individual repayment and is not supported by the people's court.
Summary of the referee]::
The Hunan Provincial High People's Court held that the agreement signed on June 1, 2015 between the third party, Liu Yiqi and 13 others, and Sunshine Company was the settlement of their loan relationship between the parties, and a new agreement was made on the performance of the loan debt, and there was no agreement on the extinction of the loan debts of Sunshine Company, and the loan debts between Liu Yiyi and the other 13 persons and Sunshine Company were not extinguished by the signing of the agreement. In this case, Chen Jinkai filed a lawsuit on the premise that he had not declared his creditor's rights and had been examined by the bankruptcy administrator, compiled a list of claims or a table of claims, and raised objections, requesting the people's court to confirm his creditor's rights to the house involved in the case and requiring Sunshine Company to continue to perform the contract. Chen Jinkai's above-mentioned assertion violates the provisions of the law and is not supported by this court.
Case No.: (2019) Xiang Min Zhong No. 748.
The individual creditor does not have the right to sue for the bankruptcy administrator's performance of duties - the appellant Dehong Longchuan Materials Co., Ltd., Xiangyun County Yuefeng Materials *** Wang Mingwei and Zhao Yonglan and the appellee Dali Hongyuan Economic and Trade *** bankruptcy administrator, Dali Yinfan Real Estate Development *** creditor revocation dispute case
Summary of the referee]::
The Yunnan Provincial High People's Court held that the bankruptcy law gives creditors the right to supervise the bankruptcy administrator's professional conduct through the creditors' conference, and if the creditors' conference believes that the bankruptcy administrator is unable to perform his duties in accordance with the law and impartially or has other circumstances that are incompetent for his duties, it may apply to the people's court to replace him or in accordance with the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Enterprise Bankruptcy Law of the People's Republic of China (III) Article 15 stipulates that the creditor committee shall carry out remedial settlement, but the individual creditor has no right to directly interfere with the bankruptcy administrator's performance of duties.
Case No.: (2019) Yun Min Zhong No. 293.
The right holder who has not obtained the ownership of the subject matter involved in the case cannot exercise the right of retrieval - a case of a dispute between Xu Feiyan, the retrial applicant, and the respondent Beijing Taifeng Real Estate Development *** general retrieval right
Summary of the referee]::
After examination, the Supreme People's Court held that the right to repossession in bankruptcy is the application of the right to claim the return of goods in the bankruptcy law, and its right basis is mainly ownership and other rights. Xu Feiyan has so far failed to register the transfer of ownership of the house involved in the case and obtain the house ownership certificate, and there is no effective legal document that caused the ownership of the house involved in the case to be transferred from Taifeng Company to Xu Feiyan's name, so Xu Feiyan did not meet the conditions for exercising the right of withdrawal.
Case No.: (2019) Zui Gao Fa Min Shen No. 4052.
The creditor with doubtful creditor's rights is not a qualified subject of bankruptcy application - the appellant Guangwu Automobile Trade Co., Ltd. and the appellee Chongqing Hengmei Automobile Sales Service Co., Ltd. applied for bankruptcy liquidation
Summary of the referee]::
Generally speaking, when a creditor files an application for bankruptcy liquidation against the debtor, it may be determined that the creditor's rights and debts relationship is established in accordance with law if the debtor does not deny the creditor-debtor relationship, or denies the creditor-debtor relationship without justifiable reasons, or the debt has been determined by effective legal documents. However, if the parties have a dispute over the creditor's rights and debts and raise reasonable objections, they shall be resolved through litigation procedures. Before the creditor's rights between Guangwu Automobile Trading Company and Hengmei Automobile Sales Company have not been substantively examined and confirmed, it is not appropriate to directly determine that the creditor's rights and debts relationship between the two companies is established in accordance with law in this case. It was not improper for the court of first instance not to accept Guangwu Auto Trading Company's bankruptcy liquidation application on the grounds that the creditor's rights between Guangwu Automobile Trading Company and Hengmei Automobile Sales Company were uncertain and that Guangwu Automobile Trading Company had the qualifications of the applicant.
The Chongqing Municipal High People's Court held that the second paragraph of Article 7 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Enterprise Bankruptcy Law of the People's Republic of China (I) stipulates that "after receiving the bankruptcy application, the people's court shall promptly examine the applicant's subject qualifications, the debtor's subject qualifications and the reasons for bankruptcy, as well as relevant materials and evidence, and make a ruling on whether to accept it in accordance with Article 10 of the Enterprise Bankruptcy Law." "In this case, Guangwu Automobile Trading Company filed an application for bankruptcy liquidation as a creditor of Hengmei Automobile Sales Company, and the premise was that Guangwu Automobile Trading Company enjoyed a real and effective creditor's right against Hengmei Automobile Sales Company, that is, the creditor's rights and debts relationship between the two companies was established in accordance with the law. Generally speaking, if the debtor does not deny the creditor's rights and debts, or denies the creditor's rights and debts relationship without justifiable reasons, or the debts have been determined by effective legal documents, the creditor's rights and debts relationship may be determined in accordance with law. However, if the parties have a dispute over the creditor's rights and debts and raise reasonable objections, they shall be resolved through litigation procedures. In this case, Guangwu Automobile Trading Company played a decisive role in the personnel appointment, financial approval, seal management, and even the appointment of the person entrusted to the litigation of Hengmei Automobile Sales Company, and He Moumou, a shareholder and director of Hengmei Automobile Sales Company, also raised reasonable doubts about the authenticity of the above-mentioned creditor's rights and debts. Based on the above reasons, it is not appropriate to directly determine that the creditor-debtor relationship between the two companies is established in accordance with the law in this case before the creditor's rights between Guangwu Automobile Trading Company and Hengmei Automobile Sales Company have not been substantially examined and confirmed. It was not improper for the court of first instance not to accept Guangwu Auto Trading Company's bankruptcy liquidation application on the grounds that the creditor's rights between Guangwu Automobile Trading Company and Hengmei Automobile Sales Company were uncertain and that Guangwu Automobile Trading Company had the qualifications of the applicant.
Case No.: (2019) Yu Po Zhong No. 2.
The centralized jurisdiction of the bankruptcy acceptance court is superior to other exclusive jurisdiction - the appellant Luxi County Highway and Bridge Engineering Co., Ltd. and the appellee Huafeng Construction Co., Ltd. and the original defendants Kunming Dianchi National Tourism Resort Management Committee, Kunming Dianchi National Tourism Resort State-owned Assets Investment Management (Group) Co., Ltd., and Kunming Century Huafeng Development *** Construction Contract Dispute
Summary of the referee]::
In the event of a conflict between the application of the Civil Procedure Law and the application of the Enterprise Bankruptcy Law, since the Enterprise Bankruptcy Law is a special civil procedure law, the Enterprise Bankruptcy Law shall prevail in accordance with the principle that the special law prevails over the general law.
After examination, the Supreme People's Court held that, according to Article 33 of the Civil Procedure Law of the People's Republic of China, "litigation arising from real estate disputes shall be under the jurisdiction of the people's court where the immovable property is located" and Article 28, Paragraph 2 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China, "Disputes over rural land contracting and operation contracts, housing lease contracts, construction contracts, and policy-based housing sales contracts shall be subject to jurisdiction in accordance with real estate disputes" This case should have been under the jurisdiction of the people's court where the immovable property is located. According to Article 21 of the Enterprise Bankruptcy Law of the People's Republic of China, "after the people's court accepts the bankruptcy application, the civil lawsuit of the debtor can only be filed with the people's court that accepts the bankruptcy application", the case should be under the jurisdiction of the Intermediate People's Court of Ningbo City, Zhejiang Province. As a result, there is a conflict between the application of the Civil Procedure Law and the application of the Enterprise Bankruptcy Law, and since the Enterprise Bankruptcy Law of the People's Republic of China is a special civil procedure law, according to the principle that the special law is superior to the general law, the Enterprise Bankruptcy Law of the People's Republic of China should be applied preferentially in this case, and the Intermediate People's Court of Ningbo Municipality, Zhejiang Province has jurisdiction.
Case No.: (2018) Supreme Law Civil Jurisdiction Zhong No. 129.
The new civil litigation related to the debtor during the implementation of bankruptcy reorganization is not under the centralized jurisdiction of the court hearing the bankruptcy case - the plaintiff Jiangsu Guoan Construction and Installation Engineering and the defendant Daqing Oilfield Construction Group *** Wison Engineering (China) *** China National Petroleum Seventh Construction Company and China Chengda Engineering *** PetroChina Sichuan Petrochemical Co., Ltd. Construction project construction contract dispute
Summary of the referee]::
Article 21 of the Enterprise Bankruptcy Law of the People's Republic of China stipulates that: "After the people's court accepts the bankruptcy application, the civil lawsuit concerning the debtor can only be filed with the people's court that accepts the bankruptcy application. "Its purpose is to ensure the orderly conduct of bankruptcy proceedings through centralized jurisdiction, and to avoid civil litigation involving debtors that occur during the bankruptcy proceedings, which are tried by different courts, which makes it difficult to coordinate the trial progress of bankruptcy cases with bankruptcy cases, and affects the smooth progress of bankruptcy proceedings, so it is necessary to concentrate these lawsuits on the people's courts hearing bankruptcy cases and hear them together. The provisions of Article 21 of the Enterprise Bankruptcy Law of the People's Republic of China shall not apply to the new civil litigation concerning the debtor that occurs during the execution of bankruptcy reorganization and is not necessary to coordinate with the trial of bankruptcy reorganization cases.
The Supreme People's Court held that Article 21 of the Enterprise Bankruptcy Law of the People's Republic of China stipulates that "after the people's court accepts the bankruptcy application, the civil lawsuit concerning the debtor can only be filed with the people's court that accepts the bankruptcy application." "Its purpose is to ensure the orderly conduct of bankruptcy proceedings through centralized jurisdiction, and to avoid civil litigation involving debtors that occur during the bankruptcy proceedings, which are tried by different courts, which makes it difficult to coordinate the trial progress of bankruptcy cases with bankruptcy cases, and affects the smooth progress of bankruptcy proceedings, so it is necessary to concentrate these lawsuits on the people's courts hearing bankruptcy cases and hear them together. In accordance with the provisions of Articles 86 and 87 of the Enterprise Bankruptcy Law of the People's Republic of China, if the people's court rules to approve the reorganization plan or the draft reorganization plan, the reorganization procedure shall be terminated. Article 89 stipulates that the debtor shall be responsible for the implementation of the reorganization plan. Article 90 stipulates that from the date on which the people's court rules to approve the reorganization plan, the administrator shall supervise the implementation of the reorganization plan within the supervision period specified in the reorganization plan. In this case, the main work during the implementation of the reorganization plan of Guoan Construction Company was the execution of the reorganization plan by the debtor, and the administrator supervised and reported, and there was no evidence that the trial of the bankruptcy reorganization case by the Dafeng Court was still ongoing. Article 21 of the Enterprise Bankruptcy Law of the People's Republic of China. According to Article 33 of the Civil Procedure Law of the People's Republic of China and Article 28 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China, this case should be under the jurisdiction of the court where the construction project is located. Since the amount of the subject matter involved in this case amounted to RMB 45,360,715, the Intermediate People's Court should have jurisdiction. The project in this case is located in Pengzhou City, Sichuan Province, so the case should be heard by the Intermediate People's Court of Chengdu City, Sichuan Province.
Case No.: (2019) Supreme Law Civil Jurisdiction No. 14.
The case in which the bankrupt enterprise is the plaintiff should also be under the jurisdiction of the bankruptcy trial court - the case of the appellant Chongqing Shengfeng Cable *** due to a contract dispute with the appellee Chongqing Baofeng Cable ***
Summary of the referee]::
Article 21 of the Enterprise Bankruptcy Law of the People's Republic of China stipulates that: "After the people's court accepts the bankruptcy application, the civil lawsuit concerning the debtor can only be filed with the people's court that accepts the bankruptcy application. Among them, "civil litigation relating to the debtor" includes cases in which the debtor is the defendant and cases in which the debtor is the plaintiff.
The Chongqing Municipal High People's Court held that the case was a contract dispute. On November 8, 2018, the Fifth Intermediate People's Court of Chongqing Municipality issued the (2018) Yu 05 Po Shen No. 127 Civil Ruling, ruling to accept the bankruptcy reorganization application of the applicant Liu Xiaoyu against the respondent Chongqing Baofeng Cable***. According to Article 21 of the Enterprise Bankruptcy Law of the People's Republic of China, "after the people's court accepts the bankruptcy application, the civil lawsuit concerning the debtor can only be filed with the people's court that accepts the bankruptcy application", in which "civil litigation concerning the debtor" includes cases in which the debtor is the defendant and cases in which the debtor is the plaintiff. In this case, Chongqing Baofeng Cable *** filed a lawsuit after the Chongqing Fifth Intermediate People's Court ruled to accept the bankruptcy application, so this case should be under the jurisdiction of the people's court that accepted the bankruptcy application, that is, the Chongqing Fifth Intermediate People's Court. In summary, the appellant's grounds of appeal for Chongqing Shenglan Cable *** are not established.
Case No.: (2019) Yu Min Zhi Zhong No. 133.
The double wage difference without signing a labor contract is not an employee bankruptcy claim - a dispute between the retrial applicant Louis and the respondent Wulong County Hongyun Coal *** employee bankruptcy claim
Summary of the referee]::
The Chongqing Higher People's Court held that the difference between two times the wage for an unsigned labor contract as stipulated in the first paragraph of Article 82 of the Labor Contract Law of the People's Republic of China is not premised on the amount of labor paid by the employee, but on the premise of the employer's illegal act of not signing a labor contract with the employee, although the term "wages" is used in the above provisions However, the double wage difference without a labor contract is punitive damages, which does not belong to labor remuneration and is not wages in the substantive sense, so it does not belong to the bankruptcy claim of the employee.
Employees' bankruptcy claims include the wages owed by the debtor to employees, medical treatment, disability subsidies and bereavement expenses, the basic endowment insurance and basic medical insurance expenses that should be transferred to the employees' personal accounts, and the compensation that should be paid to employees according to laws and administrative regulations. Among them, wages are the labor remuneration of laborers, that is, the equivalent exchange of labor paid by laborers. However, the difference between the two times the wages of the non-signed labor contract stipulated in the first paragraph of Article 82 of the Labor Contract Law of the People's Republic of China is not based on the amount of labor paid by the employee, but on the premise of the employer's illegal act of not signing a labor contract with the employee, although the term "wage" is used in the above provisions However, the double wage difference without a labor contract is punitive damages, which is a punitive measure imposed on the employer in the law for the employer's failure to sign a written labor contract with the employee, and is the embodiment of the statutory liability borne by the employer for failing to sign a written labor contract with the employee in accordance with the law, and does not belong to labor remuneration, not wages in the substantive sense, and does not belong to the scope of protection of the employee's bankruptcy claim. The people's court of second instance correctly regarded the above-mentioned amount as an ordinary bankruptcy creditor's right.
Case No.: (2017) Yu Min Shen No. 2416.
How to deal with the parties who apply for liquidation, reorganization and reconciliation of the debtor at the same time?
Summary of the referee]::
The Chongqing No. 5 Intermediate People's Court held that if a party applies for liquidation, reorganization or reconciliation of the debtor at the same time, the people's court shall, on the basis of the actual situation of the debtor and the wishes of all parties, and on the basis of organizing the parties to fully demonstrate, accept the application for reorganization or reconciliation in accordance with the law if there is a possibility of reorganization or reconciliation.
It is not possible to have two different insolvency proceedings against the same debtor at the same time. After accepting the reorganization application, if the reorganization is unsuccessful, the debtor will carry out bankruptcy liquidation in accordance with the law, and the parties do not need to file a separate bankruptcy liquidation application.
In this case, the parties applied for liquidation and reorganization of the debtor at the same time, and based on the actual situation of Weihao Industrial Company and the wishes of all parties, and comprehensively analyzed the predicament of Weihao Industrial Company, the feasibility of reorganization and other factors, this court held that Weihao Industrial Company had the possibility of reorganization and should accept the reorganization application in accordance with the law. While filing for bankruptcy is the right of the bankruptcy applicant, it is not possible for two different proceedings to be conducted at the same time. After this court accepts the application for reorganization, if the reorganization is unsuccessful, Weihao Industrial Company will carry out bankruptcy liquidation in accordance with the law, and the parties do not need to file another application for bankruptcy liquidation.
Case No.: (2019) Yu 05 Po Shen No. 64.
This article is derived from the "Rules for the Same Judgment in Similar Cases", such as invasion and deletion.