Reconstruct the core and process of bankruptcy legislation around the bankruptcy information flow of bankrupt enterprises
Beijing Dasu has an appointment with legal advice*** Bankruptcy Law Department.
The main objective of the bankruptcy law is to fairly and openly ascertain the bankruptcy information of the bankrupt enterprise in order to judge whether all its bankruptcy estate has been ascertained, and one of its main functions is to prevent the bankrupt enterprise from concealing, transferring and destroying the bankruptcy estate, and for the takeover of the bankruptcy estate, it basically relies on the investigation and collection of bankruptcy information. In addition, the formulation and decision-making of bankruptcy reorganization and reconciliation will inevitably rely on bankruptcy information. It can be seen that bankruptcy information is actually the beginning and end point of the entire bankruptcy process. From the perspective of the timing of the whole process of China's Enterprise Bankruptcy Law, the legislation does not clearly stipulate the legal status, function, circulation and attribution of bankruptcy information of bankrupt enterprises (i.e., various forms of expression such as account books, documents, and statements). It cannot but be said that the bankruptcy law is not clearly positioned. In short, bankruptcy information should be defined from the perspective of evidence to identify the bankruptcy estate, and at the same time, it is the core of the entire bankruptcy process, it should clearly circulate in a visible form in the bankruptcy procedure, and the final attribution should be kept by the court in the form of bankruptcy files after the bankruptcy proceedings are concluded.
If there is no true, complete, standardized and high-quality bankruptcy information flow as the underlying logic of the operation of bankruptcy proceedings, any bankruptcy proceedings will eventually be reduced to superficial price change and distribution, which will undermine the essence of the bankruptcy law. This article intends to make some preliminary comments based on case-handling practice and legal logic thinking, and looks forward to colleagues participating in continuing this topic, so as to benefit the development of China's bankruptcy rule of law to the forefront of world legislation.
With regard to financial accounting and documents, China's Enterprise Bankruptcy Law has clear provisions in the following three articles: First, the first paragraph of Article 15 stipulates that "from the date on which the ruling of the people's court to accept the bankruptcy application is served on the debtor to the date of the conclusion of the bankruptcy proceedings, the relevant personnel of the debtor shall bear the following obligations: (1) properly keep the property, seals, account books, documents and other materials in their possession and management", and the second paragraph stipulates that "the relevant personnel referred to in the preceding paragraph refer to the legal representative of the enterprise; Upon the decision of the people's court, it may include the financial management personnel and other business management personnel of the enterprise." From this provision, the following information can be interpreted: the scope of account books and documents and other materials, not the property and seals of the enterprise, and the materials is not limited to account books and documents, but the specific scope is not clear. Clause.
2. Article 25 stipulates that "the administrator shall perform the following duties: (1) take over the debtor's property, seals, account books, documents and other materials", from which the following information can be read: the subject of rights in account books, documents and other materials is the debtor, and the administrator only takes over, and the subject of rights has not been changed or transferred. Third, paragraph 2 of article 68 stipulates that "when performing its duties, the creditor committee has the right to require the relevant personnel of the administrator and the debtor to explain the affairs within the scope of its authority or provide relevant documents". This provision can be interpreted as follows: bankruptcy information includes "an explanation of the affairs within the scope of its authority", and "relevant documents" include account books and documents.
Although there are no clear provisions, the legislative provisions that can be implicitly inferred are: First, Article 50 stipulates that "after receiving the materials for the declaration of creditor's rights, the administrator shall register and make a register, examine the declared creditor's rights, and prepare a list of creditor's rights". Clause.
2. Article 61 stipulates that "the creditors' conference shall exercise the following functions and powers: (1) to verify the creditor's rights ......(5) Decide to continue or stop the debtor's business ......(6) Adoption of the reorganization plan ......The reasoning of this provision is the same as above, when the creditors' meeting verifies the creditor's rights, or votes on whether the debtor will continue or cease business, or before voting on the reorganization plan, it must also be inseparable from the account books and documents as the basis for review or decision-making reference, so as to understand the true situation of the debtor. Clause.
Article 80 stipulates that "if the debtor manages its property and business affairs on its own, the debtor shall prepare a draft reorganization plan", which can be interpreted as saying that the debtor's preparation of the draft reorganization plan is logically inseparable from account books and documents as basic information, especially when bringing in external investors, it is necessary to conduct due diligence, financial analysis, valuation analysis, business analysis, etc. At this time, the administrator shall return the account books and documents to the debtor. China's Enterprise Bankruptcy Law does not clearly stipulate this.
In the bankruptcy liquidation and bankruptcy termination procedures, China's Enterprise Bankruptcy Law basically does not mention the concepts of account books and documents and other materials or documents, and it seems that these bankruptcy information is no longer relied on from the perspective of the operation of these two procedures. Article 122 stipulates that "the manager shall terminate the performance of his duties on the day following the completion of the deregistration. However, except where there is a pending litigation or arbitration", the information that can be read in this article is: when the administrator terminates the performance of his duties, will the account books and documents and other materials be returned to the debtor's shareholders or will they be included in the bankruptcy case file of the court or destroyed? The legislation does not clearly stipulate that it is a very big loophole. This is because Article 123 stipulates that within two years after the conclusion of the bankruptcy proceedings, if it is found that the debtor has other property, additional distribution may be made. This provision shows that the identification and collection of bankruptcy estate is a complex matter, especially when the debtor deliberately conceals the property. Therefore, account books and documents and other materials cannot be destroyed or kept in the hands of the debtor, but should be permanently kept in the court's archives, and modern information and storage technology can meet this demand.
The above bankruptcy information flow can be classified from many perspectives, for example, the time period of bankruptcy information circulation can be divided from the three dimensions of procedure initiation, procedure development and procedure termination. The purpose of this division is to make it clearer that bankruptcy information is indeed relevant to the bankruptcy process. If the entities participating in the bankruptcy proceedings do not take bankruptcy information as the common subject, they will have no purpose, and the rights, obligations and responsibilities of each entity in the bankruptcy law will not be directed. For example, the core responsibility of the bankruptcy administrator is to find and collect the bankruptcy estate, which relies on its comprehensive investigation, collation, and classification of bankruptcy information, and finds clues about the bankruptcy property that may be hidden, rather than the sale and distribution, which are relatively less technical. The bankruptcy representative should act actively like an investigative agency, rather than being passively and mechanically dragged along by the bankruptcy law process. The rights of bankruptcy creditors are also mainly reflected in the access, reproduction and full use of bankruptcy information. The obligation of the bankruptcy debtor is to provide complete, true and accurate bankruptcy information. In this way, it is a law with clear objectives, precise positioning and clear logic to establish the core of the bankruptcy law, reconstruct the bankruptcy procedures around it, and reallocate the rights and responsibilities of all parties. However, China's Enterprise Bankruptcy Law does not have complete provisions on the definition, classification, scope, circulation, handover, turnaround, custody, investigation, aggregation and other series of links of bankruptcy information, and the core of the construction of China's Enterprise Bankruptcy Law is not bankruptcy information, but multiple parallel plates, which leads to a single main line of legislation.