Viewpoint... Creditors face legal risk prevention in bankrupt enterprises.
Published:
2021-11-19
Introduction In recent years, more and more enterprises have been ruled by the people's court to enter bankruptcy proceedings. Because early bankruptcy cases are not common, all parties often fail to take the best measures to deal with enterprises on the verge of bankruptcy, resulting in frequent risks after bankruptcy. Combined with his own bankruptcy management experience, the author combs and discusses the legal risk prevention of bankrupt enterprises from the perspective of creditors, with a view to enlightening readers. Text Under the insolvency law, ordinary creditors are usually faced with partial liquidation and partial loss after the order of liquidation of ordinary insolvency claims. At the same time, existing laws also establish systems such as retention of title, security interests, in-transit subject matter retrieval and debt set-off, which can enable individual creditors to obtain preferential settlement from losses. Therefore, when a creditor discovers that a claim has been formed against an enterprise on the verge of bankruptcy or bankruptcy, it should be sorted out in a timely manner to avoid the loss of priority rights. 1. Title retention system Article 641 of the Civil Code and other relevant laws establish a retention-of-title system, in which the parties may agree that in a commodity transaction in which the ownership of property is transferred, the other party retains its ownership of the property after the owner of the property has transferred the possession of the subject matter, and the transfer of ownership occurs only after the completion of certain conditions. 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 may be retrieved by the right holder of the property through the administrator. Thus, when an enterprise is on the verge of insolvency and must trade and is a seller, creditors can add a retention-of-title clause to the contract to avoid insolvency losses. 2, the real right security system. Articles 386, 387, 394, 425 and 447 of the Civil Code and other relevant laws establish a system of security interests, whereby the security interest holder shall, in accordance with the law, enjoy the right to priority compensation for the secured property in the event of the debtor's failure to perform the debts due or the realization of the security interest agreed upon by the parties. Article 109 of the insolvency law provides that a right holder with a security right in the particular property of the insolvent person has a priority right to payment of that particular property. Therefore, when faced with the imminent bankruptcy of the enterprise and must deal, creditors strive to establish a security interest on the basis of claims. After the debtor's bankruptcy, creditors should pay attention to whether there is an organic lien on the debtor's property, in addition to sorting out the mortgaged property and the pledge in a timely manner. (3) Other systems In the subject matter retrieval system, article 39 of the bankruptcy law stipulates that when the people's court accepts the bankruptcy application, the seller has shipped the subject matter of the sale to the debtor as the buyer, and if the debtor has not received and has not paid the full price, the seller may retrieve the subject matter in transit. Debt set-off system, article 40 of the bankruptcy law provides that creditors who have debts to the debtor before the bankruptcy application is accepted may claim set-off from the administrator. Concluding remarks The author sorts out the legal risk prevention measures that creditors should take in different time periods, which can be summarized as follows: when the debtor's credit rating drops, creditors should focus on the retention of title and real right security; After learning that the debtor is bankrupt, creditors should sort out whether there is any object in transit and possession of the debtor's assets. In the declaration of bankruptcy claims, creditors should sort out whether there are various priorities.
Introduction
In recent years, more and more enterprises have been ruled by the people's court to enter bankruptcy proceedings. Because early bankruptcy cases are not common, all parties often fail to take the best measures to deal with enterprises on the verge of bankruptcy, resulting in frequent risks after bankruptcy. Combined with his own bankruptcy management experience, the author combs and discusses the legal risk prevention of bankrupt enterprises from the perspective of creditors, with a view to enlightening readers.
Text
Under the insolvency law, ordinary creditors are usually faced with partial liquidation and partial loss after the order of liquidation of ordinary insolvency claims. At the same time, existing laws also establish systems such as retention of title, security interests, in-transit subject matter retrieval and debt set-off, which can enable individual creditors to obtain preferential settlement from losses. Therefore, when a creditor discovers that a claim has been formed against an enterprise on the verge of bankruptcy or bankruptcy, it should be sorted out in a timely manner to avoid the loss of priority rights.
1. Title retention system
Article 641 of the Civil Code and other relevant laws establish a retention-of-title system, in which the parties may agree that in a commodity transaction in which the ownership of property is transferred, the other party retains its ownership of the property after the owner of the property has transferred the possession of the subject matter, and the transfer of ownership occurs only after the completion of certain conditions.
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 may be retrieved by the right holder of the property through the administrator.
Thus, when an enterprise is on the verge of insolvency and must trade and is a seller, creditors can add a retention-of-title clause to the contract to avoid insolvency losses.
2, the real right security system.
Articles 386, 387, 394, 425 and 447 of the Civil Code and other relevant laws establish a system of security interests, whereby the security interest holder shall, in accordance with the law, enjoy the right to priority compensation for the secured property in the event of the debtor's failure to perform the debts due or the realization of the security interest agreed upon by the parties.
Article 109 of the insolvency law provides that a right holder with a security right in the particular property of the insolvent person has a priority right to payment of that particular property.
Therefore, when faced with the imminent bankruptcy of the enterprise and must deal, creditors strive to establish a security interest on the basis of claims. After the debtor's bankruptcy, creditors should pay attention to whether there is an organic lien on the debtor's property, in addition to sorting out the mortgaged property and the pledge in a timely manner.
(3) Other systems
In the subject matter retrieval system, article 39 of the bankruptcy law stipulates that when the people's court accepts the bankruptcy application, the seller has shipped the subject matter of the sale to the debtor as the buyer, and if the debtor has not received and has not paid the full price, the seller may retrieve the subject matter in transit.
Debt set-off system, article 40 of the bankruptcy law provides that creditors who have debts to the debtor before the bankruptcy application is accepted may claim set-off from the administrator.
Concluding remarks
The author sorts out the legal risk prevention measures that creditors should take in different time periods, which can be summarized as follows: when the debtor's credit rating drops, creditors should focus on the retention of title and real right security; After learning that the debtor is bankrupt, creditors should sort out whether there is any object in transit and possession of the debtor's assets. In the declaration of bankruptcy claims, creditors should sort out whether there are various priorities.
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