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.
Determination of the administrator's written notification obligation in liquidation liability disputes
In bankruptcy proceedings or compulsory liquidation proceedings, the administrator shall be diligent and conscientious in accordance with the law, notify known creditors is a necessary procedure, and will be liable for compensation if it fails to perform its duties in accordance with the law.
As of December 13, 2023, a total of 13,883 documents have been retrieved through the search results of the keyword "liquidation responsibility" entered through the China Judgments Network, and the data are as follows:
Note: The data ** is on the China Judgment Network, compiled by Feng Jianbo.
By combing and combining with judicial practice, the adjudication rules for the determination of the administrator's written notification obligation in liquidation liability disputes are summarized as follows:
Adjudication Rule 1: The liquidation group only publishes the announcement of the declaration of creditor's rights and fails to notify the creditor in writing, which constitutes joint infringement.
Reference case 1: In the second-instance judgment of the Intermediate People's Court of Guangzhou Municipality, Guangdong Province (2023) Yue 01 Min Zhong No. 24644, Guangzhou Zengcheng Xintang Triumph Arch Hotel*** Zou Yaofeng et al., on the issue of whether the liquidation team was diligent and conscientious, the court held that Article 11 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China (II) stipulates: " When the company is liquidated, the liquidation team shall, in accordance with the provisions of Article 185 of the Company Law, notify all known creditors of the dissolution and liquidation of the company in writing, and make an announcement in influential newspapers at the national level or at the provincial level where the company is registered according to the scale and geographical scope of the company. Where the liquidation group fails to perform its notification and announcement obligations in accordance with the provisions of the preceding paragraph, resulting in the creditor's failure to declare its creditor's rights in a timely manner and not being repaid, and the creditor claims that the members of the liquidation group bear liability for the losses caused, the people's court shall support it in accordance with law."
It can be seen from this that it is the legal obligation of the liquidation group to notify the known creditors in writing, and that Lu Qifen's claims in this case have been tried in accordance with the law and entered the execution stage, and belong to the known creditors.
However, according to the ascertained facts, Zou Yaofeng of Guangzhou Zengcheng Xintang Triumphal Arch Hotel and Ou Weiqiang of Guangzhou Modern City only published an announcement on the declaration of creditor's rights in the newspaper, and did not notify Lu Qifen in writing. Zou Yaofeng of Guangzhou Zengcheng Xintang Triumphal Arch Hotel and Guangzhou Modern City District Weiqiang are members of the liquidation team, and as a community to manage the liquidation affairs, they should perform their liquidation duties in accordance with the law and share risks. At present, Zou Yaofeng of Guangzhou Zengcheng Xintang Triumphal Arch Hotel and Ou Weiqiang of Guangzhou Modern City have not fulfilled their notification obligations, which constitutes joint infringement.
If the liquidation group of the second adjudication rule has no evidence to prove that it has notified the creditor to declare the creditor's rights, it shall be liable for compensation
Reference case 2: In the civil judgment of the second instance of the liquidation liability dispute between Deng Quanhong and Zhang Rui and others, the court held that in the civil judgment of the second instance of the liquidation liability dispute between Deng Quanhong and Zhang Rui, the Intermediate People's Court of Guangzhou Municipality, Guangdong Province, (2023) Yue 01 Min Zhong No. 12820, the court held that:
First, the contract period between OPEC and Pinmai expired on March 29, 2021, and after the expiration of the contract, OPEC informed Pinmai on April 7, 2021 that it needed a refund, and on April 24, 2021, Deng Quanhong also said in a WeChat conversation that OPEC needed to bear part of it, and the remaining amount would be refunded. It can be seen that Pinmai has confirmed its debt payable to OPEC at least on April 26, 2021. The current Pinmai Company was cancelled on June 30, 2021, and there was no evidence to prove that it had notified Oppe to declare its creditor's rights before the cancellation, so Deng Quanhong and Quanmai Enterprises, as shareholders and members of the liquidation group of Pinmai Company, should be liable to Oppe for the debts owed by Pinmai Company to Oppe.
Second, the Company was deregistered on 18 June 2021, and as mentioned above, the debts involved in the case also occurred before the cancellation of the Company. Although Quanmai Enterprise had been deregistered before the cancellation of Pinmai Company, according to Article 102 of the Partnership Enterprise Law of the People's Republic of China, its partners Deng Quanhong, Zhang Rui and Bei Lande Company applied to the registration authority for cancellation of registration before the debts were liquidated, which harmed the interests of creditors. In addition, Deng Quanhong, Zhang Rui and Bei Lan also recorded in the liquidation report that they promised that "after the liquidation of the company's claims and debts, if any creditor's rights and debts are liquidated, all shareholders shall bear them according to the proportion of their capital contributions", therefore, Zhang Rui and Bei Lan should be liable for the debts owed by Quanmai to Oupei.
Adjudication Rule 3: The debtor's failure to issue VAT invoices caused losses to creditors, and the liquidation group failed to performThe obligation to make announcements and notices shall be liable for compensation for such losses.
Reference case 3: In the civil judgment of the second instance of the civil judgment of the liquidation liability dispute between Shi Xiaoyang and Meian Industry (Jiangsu)** in the civil judgment of the Intermediate People's Court of Zhongshan City, Guangdong Province (2023) Yue 20 Min Zhong No. 5438, the court held that Shi Xiaoyang and Wu *zhu, as shareholders of Chenyuan Company, established a liquidation group and prepared a liquidation report, and applied for the cancellation of Chenyuan Company through the resolution of the shareholders' meeting. According to the first paragraph of Article 185 of the Company Law of the People's Republic of China, "the liquidation group shall notify the creditors within 10 days from the date of establishment and make an announcement in the newspaper within 60 days." The creditor shall, within 30 days from the date of receipt of the notice, and within 45 days from the date of announcement if the notice is not received, declare the creditor's rights to the liquidation group. Paragraph 3 of Article 189 "If a member of the liquidation group causes losses to the company or creditors due to intentional or gross negligence, he shall be liable for compensation." and Article 11 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China (II) "When a company is liquidated, the liquidation team shall, in accordance with the provisions of Article 185 of the Company Law, notify all known creditors of the dissolution and liquidation of the company in writing, and make an announcement in influential newspapers at the national or provincial level in the place where the company is registered according to the scale and geographical scope of the company." Where the liquidation group fails to perform its notification and announcement obligations in accordance with the provisions of the preceding paragraph, resulting in the creditor's failure to declare its creditor's rights in a timely manner and not being repaid, and the creditor claims that the members of the liquidation group bear the responsibility for compensation for the losses caused thereby, the people's court shall support it in accordance with law. Shi Xiaoyang made it clear that the two parties did not agree on the time for issuing VAT invoices, and Shi Xiaoyang did not provide evidence that he, as a member of the liquidation group, had fulfilled the obligation of notification and announcement to Mei'an Company in accordance with the above-mentioned laws and regulations when liquidating Chenyuan Company, resulting in the loss of Mei'an Company caused by Chenyuan's cancellation and inability to issue VAT invoices to Mei'an Company, and Shi Xiaoyang should compensate Market American Company for the corresponding losses.
Lawyer advice
A lesson from the previous car, a teacher from the back. Feng Jianbo, a lawyer from the Bankruptcy Center of Beijing Jingshi (Chongqing) Law Firm, suggested that in both bankruptcy proceedings and compulsory liquidation proceedings, the administrator or liquidation team should meet two conditions for the declaration of creditors' claims in accordance with the law: one is to make an announcement in the national or provincial influential newspapers in the place where the company is registered, and the other is to notify all known creditors in writing.
At the same time, the preservation of archives management evidence in the performance of duties by the manager or liquidation team cannot be ignored, and the newspaper that publishes the announcement of the declaration of claims and the EMS postal express mail track information of the written notice should be archived.
Letters of the law
Company Law of the People's Republic of China
Article 185:[Creditors' Declaration of Creditor's Rights]The liquidation group shall notify creditors within 10 days of its establishment, and make an announcement in a newspaper within 60 days. The creditor shall, within 30 days from the date of receipt of the notice, and within 45 days from the date of announcement if it has not received the notice, declare its creditor's rights to the liquidation group.
Paragraph 3 of Article 189 "If a member of the liquidation group causes losses to the company or creditors due to intentional or gross negligence, he shall be liable for compensation."
Article 11 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China (II) When a company is liquidated, the liquidation group shall, in accordance with the provisions of Article 185 of the Company Law, notify all known creditors of the dissolution and liquidation of the company in writing, and make an announcement in influential newspapers at the national or provincial level in the place where the company is registered according to the scale and geographical scope of the company. Where the liquidation group fails to perform its notification and announcement obligations in accordance with the provisions of the preceding paragraph, resulting in the creditor's failure to declare its creditor's rights in a timely manner and not being repaid, and the creditor claims that the members of the liquidation group bear liability for the losses caused, the people's court shall support it in accordance with law."
Bankruptcy Law of the People's Republic of China
Article 25 The manager shall perform the following duties:
1) Take over the debtor's property, seal, account books, documents and other materials;
2) Investigate the debtor's property status and prepare a property status report;
3) Decide on the internal management of the debtor;
d) Decide on the debtor's daily expenses and other necessary expenses;
5) Before the first meeting of creditors, decide to continue or stop the debtor's business;
6) To manage and dispose of the debtor's property;
7) Participate in litigation, arbitration or other legal proceedings on behalf of the debtor;
8) Propose to convene a meeting of creditors;
9) Other duties that the people's court finds the manager should perform.
Where this Law has other provisions on the duties of managers, those provisions shall apply. Article 27: Managers shall be diligent and conscientious and faithfully perform their duties.
Article 130:Where managers fail to follow the provisions of this Law to diligently perform their duties and faithfully perform their duties, the people's courts may impose fines in accordance with law;Where losses are caused to creditors, debtors or third parties, they shall be liable for compensation in accordance with law.
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.