Juridical argument
Basis " business failure law " relevant provision, reforming rules the day that makes from the court produces legal effectiveness namely, during entering reforming, do not be become effective condition with service or announcement, from the day that reforming ruling makes, executive program ought to break down, the executive step that after this takes should be corrected or cancel.
Introduction of details of a case
One, on July 17, 2013, about Jin Milan company and adornment of company of golden Great Wall decorate contract dispute one case, power sea quadrangle is made (2012) power civilian one first word the 58th civil judgment, sentence company of your gold Great Wall to give money of project of company of Milan paying gold more than yuan of 344 principal and interest.
2, on January 14, 2015, flow via evaluating an auction to reach take pay a debt in kind or by labor, power sea quadrangle is made (2013) power hold one word carries out a ruling the 351st number, 27 flatlet produce experience of case of under one's name of company of Great Wall of ruling general gold (have not complete is checked and accept, cannot deal with formalities of change the name of owner in a register) put in Jin Milan 's charge with the current situation the company is all.
3, company of golden Great Wall puts forward to carry out demur to say, on January 12, 2015, lacteal hill court is made (2015) milk business breaks a word book of the 1st civil ruling, the insolvency that the ruling accepts firm of golden Great Wall reforming application, power sea quadrangle carries out a program to answer when break down.
4, on August 17, 2016, power sea quadrangle is made (2016) rash 10 hold different carries out a ruling 117 numbers, cancel this courtyard (2013) power hold one word carries out a ruling the 351st number.
5, Jin Milan company raises carry out reconsider, on November 14, 2016, shandong tall courtyard is made (2016) Lu Zhifu carries out a ruling 234 numbers, reject golden Milan company to reconsider application.
6, golden Milan company raises appeal, refer a scholar special legislation matter proves a book, think experience case belongings should not is go bankrupt belongings. On June 27, 2017, the supreme court is made (2017) top magic art hold inspect rules 151 numbers, reject appeal of golden Milan company to request.
Juridical point reachs train of thought
Above all, forensic ruling goes bankrupt in this case the day of reforming (on January 12, 2015) the day that executes appraise at the current rate in executive court (on January 14, 2015) before, reason goes bankrupt from the ruling since the day of reforming, executive program should break down, the executive step that after this takes should be corrected or cancel. Basis " business failure law " relevant provision, reforming rules the day that makes from people court produces legal effectiveness namely, during entering reforming, do not be become effective condition with service or announcement, the day that executive program makes at reforming ruling answer namely when break down.
Next, individual pay off reachs the debt that applies for executive person and expert opinion cite not to include go bankrupt the regulation reachs contradictory ground related the judicatory explanation of belongings, all be misunderstood or misinterpret go bankrupt the become effective time that reforming rules. The day go into effect of the service of and rather than of day go into effect that reforming ruling makes oneself. In practice, debtor has many loan normally, be like with service become effective, will appear during reforming abhorrent case, cannot realize fairness to clear the purpose of creditor's rights debt.
Solid Wu should nod summary
The thing does not forget before, the division of funeral affairs. Combine point of view of supreme court judge now, in the light of go bankrupt the executive step that after reforming is accepted, takes should the pertinent question of cancel, summary point is as follows, offer solid Wu reference.
One, in solid Wu, have bankrupt Yu Shi when enterprise be executived, the application that already won executive basis carries out person ten million to want to grasp an opportunity, with time race, when carrying out belongings shedding to pat, active and active application with content pay a debt in kind or by labour. In this case, belongings of person be executived passes an auction 3 times, application executive talent applies for to executive court with content pay a debt in kind or by labour, although be later than merely,be carried out business failure reforming rules 9 days, but already was art of the lack that wind a day, regret ineffable, can static the pay off plan in waiting for reforming (if debt turns) , rate of its debt pay off basically wants than individual pay off a lot of less.
2, will tell from enterprise be executived, the individual pay off that adjudicates when become effective brings about enterprise endowment apparently not when pay a debt in kind or by labour, but active and active application goes bankrupt in order to stop caustic, once the court rules reforming or liquidation, carry out break down and executive measure removes, or can get lease of life of enterprise a gleam of.
Relevant law
" business failure law " (2006)
Court of the 19th people is accepted go bankrupt after application, of concerned debtor belongings conserve measure ought to remove, executive program ought to break down.
2 people court accepts thirtieth go bankrupt inside before application 6 months, debtor has Benfadi 2 case of the first regulation, still undertake pay off to individual creditor, administrative person has authority to request people court to give cancel. But, the except that individual pay off makes debtor belongings is benefited.
Court of the 71st people thinks via examining reforming applies for those who decide to accord with this code, ought to rule debtor reforming, give announcement.
The 72nd rules from people court the sun of debtor reforming rises to be stopped to reforming program, during be reforming.
Top people court about applicable " law of business failure of People's Republic of China " the regulation of a certain number of problems (2) [law commentate 2013 〕 of 〔 22]
The 5th goes bankrupt after application is accepted, the executive program of concerned debtor belongings not law of according to business failure of the 19th regulation break down, the relevant unit that takes executive step ought to give lawfully correct. Carry out revolving belongings lawfully, people court ought to be maintained for debtor belongings.
The individual pay off that lawsuit of the 15th debtor classics, arbitral, executive program undertakes to creditor, 2 regulation requests thirtieth of law of business failure of administrative person basis of cancel, people court does not grant to support. But, debtor and creditor ill will collude with the except that harms other loan interest.
" before top people court applies for to accept about going bankrupt, People's Republic of China has delimited whether the money that deducts executive court account to have not pay to apply for to execute a person belongs to debtor belongings to reach executive court to receive go bankrupt administrative person break down is carried out after telling letter, should deny
Court of Chongqing city senior people:
Your courtyard (2017) change civilian he 12 " before applying for to accept about going bankrupt, had delimited whether the money that deducts executive court account to have not pay to apply for to execute a person belongs to debtor belongings to reach executive court to receive go bankrupt administrative person break down is carried out after telling letter, answer, classics research, answer is as follows:
People court ruling is accepted go bankrupt had buckled when application delimit executive court account but the money that has not pay application to execute a person, still belong to debtor belongings, people court ruling is accepted go bankrupt after application, executive court should is opposite when break down of this belongings carry out. Executive court is received go bankrupt the break down that administrative person gives out carries out what after telling letter, still continue to carry out, ought to basis " top people court about law of business failure of applicable < People's Republic of China > the regulation of a certain number of problems (2) " give the 5th times lawfully correct, reason agrees with your courtyard to try the tendentiousness opinion of committee. Because law, judicatory explains the change with judicatory policy, my courtyard made on December 22, 2004 " about going bankrupt about how understanding court of < top people law administration of justice explains > the answer of the 68th ask for instructions " ([2003] civilian 2 his words the 52nd) abolish accordingly.
Try level to contend for those who discuss matter about this case in the supreme court for this case below " this academy thinks " discuss of the part in detail with the analysis:
This academy thinks, the controversy focus of this case is experience case house property should be denied include go bankrupt belongings.
The first, " business failure law " the 19th regulation: People court is accepted go bankrupt after application, of the belongings of concerned debtor conserve measure ought to remove, executive program ought to break down. The 71st sets: People court thinks via examining reforming applies for those who decide to accord with this code, ought to rule debtor reforming, give announcement. The 72nd sets: From people court the sun of ruling debtor reforming rises to be stopped to reforming program, during be reforming. According to afore-mentioned regulations, reforming rules the day that makes from people court produces legal effectiveness namely, do not be become effective condition with service or announcement, the day that executive program makes at reforming ruling answer namely when break down. In practice, debtor has many loan normally, be like with service become effective, will appear during reforming abhorrent case, cannot realize fairness to clear the purpose of creditor's rights debt. In this case, lacteal hill court goes bankrupt at dismissing firm of deposit Great Wall on January 12, 2015 reforming, this ruling produces legal effectiveness namely from the day that make. Power sea quadrangle undertook the 3rd times auctioning to experience case belongings on January 13, 2015, take executive step going bankrupt after application is accepted, basis " administration of justice of business failure law explains 2 " the 5th regulation, go bankrupt after application is accepted, the executive program of concerned debtor belongings not according to " business failure law " of the 19th regulation break down, the relevant unit that takes executive step ought to give lawfully correct. Cancel of ruling of power sea quadrangle this courtyard (2013) power hold the provision that one word implements ruling be good law and judicatory explanation the 351st number.
The 2nd, appeal person thinks, basis " administration of justice of business failure law explains 2 " the 15th regulation, the individual pay off that debtor classics lawsuit, arbitral, executive program undertakes to creditor, administrative person basis " business failure law " 2 regulation requests thirtieth of cancel, people court does not grant to support. Company of golden Great Wall is the individual pay off that to Jin Milan through proceeding the company undertakes, do not answer accordingly by cancel. In the meantime, accord with " top people court about how understanding < top people court about going bankrupt law administration of justice explains > the answer of the 68th ask for instructions " of the regulation should not include go bankrupt two kinds of exceptional case of belongings. Afore-mentioned appeal reason, all be with reforming ruling service become effective is premise, because reforming rules,think to be later than with service of ruling of content pay a debt in kind or by labour, because this is later than,rule with content pay a debt in kind or by labour become effective. The place before be like is narrated, reforming ruling is made namely become effective, the understanding that appeal person explains to afore-mentioned judicatory nots agree with lawful law and the provision that judicatory explains, also do not accord with go bankrupt the legislative spirit that the law gets countervail about fairness. In the meantime, appeal person thinks to should carry out time of basis become effective to maintain company of the Great Wall that it is gold to finish pay off to golden Milan company with this case, without legal basis.
The 3rd, basis " top people court deals with executive different make peace to reconsider a case about people court the regulation of a certain number of problems " dozenth regulation, people court reconsiders a case to examine to carrying out different make peace with written examine for the principle, can decide to whether undertake hearing of witnesses according to the need of details of a case. The appeal reason that appeal person rules about demur the program breaks the law cannot hold water.
On put together, the appeal reason of company of Milan of appeal person gold cannot hold water. Shandong tall courtyard (2016) it is clear that Lu Zhifu carries out a ruling 234 numbers to hold a fact, applicable law is correct, should grant to maintain.
Case origin
" limited company executes limited company of engineering of adornment of Nantong gold Milan and trade of buy of Great Wall of lacteal mountain gold ruling book " [top people court (2017) top magic art hold inspect 151]
