Supreme Law Introduces The First Judicial Interpretation Of Enterprise Bankruptcy Law

The Supreme People's court recently promulgated the provisions on certain issues applicable to the bankruptcy law of the People's Republic of China, and made relevant provisions on the application of laws by the people's courts in accordance with the law.

A total of nine judicial interpretations came into effect at the end of last month.

The reporter interviewed the responsible person of the Supreme People's court.

The number of bankruptcy cases accepted by the court is far less than the number of enterprises revoked by the industry and commerce.

It is reported that since the implementation of the bankruptcy law of the People's Republic of China in June 1, 2007, it has played an active role in improving the competitive mechanism of the fittest, optimizing the allocation of social resources, adjusting the social industrial structure, saving the enterprises in distress and ensuring the fair and orderly compensation of claims.

However, in practice, some courts have not yet fully realized that the enterprise bankruptcy law is being adjusted.

The solvency of the debtor is based on the amount of real property.

The third provision of the judicial interpretation stipulates that if the debtor's balance sheet, or the audit report and the asset appraisal report show that all his assets are not enough to cover all the liabilities, the people's court shall recognize that the debtor's assets are not enough to repay all debts, but the contrary evidence is sufficient to prove that the debtor's assets can repay all the liabilities.

The person in charge said that assets are not enough to repay all debts, which means that the debtor's real assets are not enough to repay all debts, which is usually referred to as "insolvency" or "debt exceeding".

The point of view of insolvency is the ratio of capital to debt. The debtor's ability to repay is only limited to real property. The factors such as credit and ability that may affect the solvency of debtors are not considered. When calculating the amount of debt, they are not included in the total amount of debt.

According to the introduction, assets are insufficient to repay all debts to debtors.

The fourth judicial interpretation also stipulates that the debtor's book assets are larger than liabilities, but one of the following circumstances is that the people's court should recognize that it is obviously lack of solvency: first, because of the serious lack of funds or the fact that property can not be realized and so on, the people's court can not repay debts; two, the legal representative's whereabouts are unknown, and no other person is responsible for managing the property and unable to pay debts; three, by the people's court's compulsory execution, it is unable to repay debts; four, long-term losses and difficulties in operating losses, unable to repay debts; five, other circumstances that cause the debtors to lose their solvency.

The court shall not raise the threshold for bankruptcy application in disguise.

The reason for creditors to apply for debtors' bankruptcy is that the debtor can not repay debts due.

In the case of creditors, when filing bankruptcy applications, they should not only submit evidence of their own creditor's rights in accordance with the law, but also give evidence to prove the fact that the debtor has unliquidated debts.

The official said that because the enterprise bankruptcy law did not cause the debtor's assets to repay all debts or obviously lack of solvency, the reasons or conditions for the application of creditors were not required, so creditors were not required to submit relevant financial vouchers and other materials. In fact, creditors were unable to submit such evidence.

The sixth judicial interpretation also stipulates that after accepting the bankruptcy petition, the people's court shall order the debtor to submit relevant materials such as description of his property, debt list, creditor's rights list and financial accounting report according to law. If the debtor refuses to submit it, the people's court may impose a fine on the debtor's directly responsible personnel.

The applicant may submit a bankruptcy petition to a higher court.

The ninth special provision of judicial interpretation is that the applicant applies for bankruptcy application to the people's court, and if the people's court fails to accept his application or fails to carry out the seventh article of this regulation, the applicant may apply for bankruptcy application to the people's court at the next higher level.

According to the introduction, the purpose of the regulation is to strengthen the supervision of the superior court to the lower court, and urge the lower court to make a ruling on whether the bankruptcy application filed by the party is admissible according to law.

According to the provisions of the enterprise bankruptcy law, the applicant shall submit a bankruptcy petition in time, and the people's court shall examine it in time and make a ruling according to law.

For the adjudication order made by the people's court, the applicant may appeal to the court at the next higher level in accordance with the twelfth provision of the enterprise bankruptcy law, so as to fully guarantee the litigant's right of litigation.

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The person in charge said that in the judicial practice, some courts did not examine the application of the parties, or they did not accept the adjudication ruling in time, nor did they make any adjudication ruling, so that the applicant's right to appeal against the adjudication ruled by the enterprise bankruptcy law was nominal, which damaged the rights of the applicant.

Therefore, in order to strengthen trial supervision, the judicial interpretation stipulates that the applicant can directly submit a bankruptcy petition to the people's court at the next higher level if the people's court fails to receive the bankruptcy petition filed by the applicant, fails to give written evidence to the applicant and receive the written evidence of the attached evidence, or fails to make a ruling within the statutory time limit.

After receiving the bankruptcy petition, the people's court at the next higher level shall order the lower court to examine the case according to law and make a ruling in time. If the lower court still fails to make a ruling, the people's court at the next higher level may make a ruling.

If the people's court at the next higher level decides to accept the case, it may at the same time direct the lower level people's court to hear the case.