According to the provisions of the bankruptcy regulations of the United States, individuals or companies can declare bankruptcy in the following five ways:
1. Dissolution and bankruptcy. Companies or individuals in the United States can apply for dissolution and bankruptcy, that is, the company is dissolved at the same time as bankruptcy. This is the most common way of bankruptcy. Generally, the administrator appointed by the court will manage all the property of the applicant and distribute it to all creditors in accordance with the law. This bankruptcy method is generally implemented when the applicant's enterprise encounters long-term and insurmountable financial difficulties. On the premise that the applicant is honest and fully cooperates with French, the court generally no longer requires the applicant to bear any debts that he cannot bear. However, under some special circumstances, the applicant may be liable for repayment after applying for bankruptcy and dissolving its business organization.
The government has been reorganized. When the company declares bankruptcy, it can also be re-established at the request of the local government. It is very rare for the government to reorganize the company.
3. When a company or individual applies to the court for bankruptcy, it can also request to re-establish its company. In this case, the applicant's protection period is 120 days. During this period, the applicant can put forward a reorganization plan without the interference of creditor's debt recovery. This method is often used when the company encounters short-term financial difficulties to avoid the company being unable to operate because of creditors' claims. /kloc-After 0/20 days, the creditor can claim the debt again, and the debtor can continue to operate the company according to its reorganization plan or apply for dissolution of its company. The company can continue to operate within 120 days.
4. Rebuilding the bankrupt family farm. It usually happens in small-scale agricultural or animal husbandry companies.
5. Personal bankruptcy. Individuals, married families or self-employed households in the United States live on wage income, and their total liabilities are below $250,000. This bankruptcy method can be used. In this case, the applicant can submit a repayment plan to the court and pay a certain amount of money to the court, and the administrator appointed by the court will repay his debt in installments. In this case, it may take the applicant a long time to pay off the debt owed. This is a common way of bankruptcy in America. In the case of personal bankruptcy, creditors have the right to obtain a copy of the debtor's repayment plan and have the right to raise objections to the court. If the debtor's repayment plan is based on deception or other dishonest behavior, the court may also reject the applicant's bankruptcy request.
First, file a bankruptcy application.
Citizens or commercial subjects should consult legal experts and analyze the advantages and disadvantages of applying for bankruptcy before submitting bankruptcy applications to the court. After submitting a bankruptcy application, you can generally forgive the debts you owe, but it also leads to the bankruptcy of individuals or commercial institutions. When submitting a bankruptcy application, the applicant must fill in the existing assets, debts owed, creditor list and the amount of creditor's rights of an individual or company in detail. The bankruptcy application must be filled out in detail and accurately. If the applicant is dishonest or even fraudulent, the debt owed by the applicant must continue to be repaid.
Bankruptcy proceedings begin with filing a bankruptcy application. After filing the bankruptcy application, the court will notify each creditor of the date and place of the first creditors' meeting. The purpose of this creditors' meeting is to learn more about the bankrupt's financial situation, total assets available and other legal issues related to bankruptcy procedures with all creditors and bankruptcy executors. The notice of the court will also state that if the creditor has any objection to the applicant's bankruptcy application, it must submit the objection to the court within a certain period of time. After submitting the bankruptcy application, the existing assets of the bankruptcy applicant that can be used to repay debts will be completely frozen and valued. Before obtaining the approval of the court, the bankruptcy applicant may not use or dispose of these properties again. The purpose of this is to protect the property of the company or individual applying for bankruptcy, so as to distribute it fairly to creditors in the future and avoid some creditors from obtaining illegitimate interests from it.
The advantage of bankruptcy application to the applicant is to prevent creditors from further claiming debts. Once the bankruptcy application is submitted to the court, the creditor cannot directly claim the debt from the debtor. If the creditor intentionally violates the legal procedures of bankruptcy and continues to demand debts from the applicant after submitting the bankruptcy application, the court will impose a certain amount of fine on the creditor. The applicant may also require the creditor to compensate for the economic losses or other losses caused by illegal demands. After submitting the bankruptcy application to the court, the creditor must wait for the judgment of the court until the bankruptcy property is completely distributed.
After the applicant submits a bankruptcy application to the court, his personal property cannot be distributed as bankruptcy property. Personal property usually includes the applicant's movable property and some rights and interests, such as husband and wife support payments obtained according to court decisions and compensation for accidents at work. In most states in the United States, some properties owned by applicants cannot be used to pay off debts. All creditors will be informed of the scope of personal property owned by the bankruptcy applicant. If the creditor disagrees with this, he may ask the court to re-determine or re-evaluate the scope of the applicant's personal property. After the creditor raises an objection to the court, the bankruptcy executor appointed by the court will re-examine the scope of personal property owned by the bankruptcy applicant, and any property rights beyond the scope of personal property will be distributed by the creditor in proportion. In some cases, creditors will also provide necessary assistance to the bankruptcy executor to help him accurately assess the scope of the personal property of the bankruptcy applicant.
For bankruptcy applicants, the biggest advantage of applying for bankruptcy is to avoid repaying all debts or debts that may occur before bankruptcy, and to give bankruptcy applicants a new starting point to engage in other business activities. However, the bankruptcy law also stipulates that after the bankruptcy applicant submits the bankruptcy application to the court, some debts still have the obligation to repay, including:
1. Bankruptcy applicants declare their personal property and creditor's rights by deception or dishonesty when submitting bankruptcy applications. Once these frauds are discovered, the bankruptcy applicant is still obliged to repay these debts.
2. Within 60 days before the court approves the bankruptcy application, the bankruptcy applicant owes more than 1000 yuan for luxury consumption.
3. Debts caused by the bankruptcy applicant by cheating, bribery, corruption and other improper means.
4. Debts incurred by the bankruptcy applicant who intentionally or maliciously caused personal injury or property loss to others.
5. All kinds of taxes owed by the bankruptcy applicant to the government, support for their children, government education loans, fines imposed by relevant government departments and property confiscated by the government according to law. In the process of bankruptcy proceedings, if the creditor thinks that his creditor's right belongs to one of the above five situations, he shall promptly file a motion with the court to obtain the approval of the court and recover his creditor's right.
Second, pay off the debt.
According to the American bankruptcy law, when the bankruptcy applicant repays the debt owed, the mortgaged debt is the first consideration, and the mortgaged creditor has the priority to be repaid. Movable property or immovable property used for mortgage can only be used to pay off the unsecured debts after paying off the debts of the mortgagee. However, if the mortgaged property is insufficient to repay the debts of the mortgaged creditor, the part that is insufficient to repay shall be regarded as unsecured creditor's rights. For this part of the creditor's rights, the mortgage creditor shall, like ordinary creditors, obtain the remaining property of the bankruptcy applicant in proportion. Of all unsecured claims, money, wages, etc. owed to the government. Take precedence over other unsecured claims. Other unsecured debts can only be paid first and then distributed among creditors in proportion. If the debt owed by the bankruptcy applicant belongs to the wages of his former employees, the bankruptcy applicant must submit a plan to pay all employees' wages to the court, and his former employees or creditors have the right to get their wages first.
Three. Bankruptcy executor
In bankruptcy proceedings, the court will appoint a bankruptcy executor for each bankruptcy applicant. The main duty of the executor is to protect and liquidate the property of the bankruptcy applicant and repay the debts to the creditors according to law. In the bankruptcy proceedings that need to reorganize the company, the bankruptcy applicant will generally invest all the funds in the bankruptcy proceedings. The management right, enterprise management right and control right are all given to the bankruptcy executor, who enjoys extensive rights in bankruptcy proceedings, and they have the right to ask the bankruptcy applicant to transfer all creditor's rights and property that are not his personal property to the bankruptcy property. Can they investigate the beer? The applicant may be cheating or dishonest. Bankruptcy executors also have the right to sell the property of the bankruptcy applicant for repayment of creditors' debts.
Four. Trial of bankruptcy cases
After the bankruptcy applicant files a bankruptcy application, his creditors may not demand debts from the bankruptcy applicant during this period. The first creditor to receive or reply to the court notice can't pay off all debts, thus damaging other possible creditors. In this case, the mortgage creditor can file a motion with the court, asking him to pay off the debt first. The court may amend or terminate the provisions prohibiting creditors from obtaining property settlement according to the circumstances. The best way to protect creditors is to specify in the contract that if the other party wants to apply for bankruptcy, it must pay off the creditors' debts first, or discuss the creditors' debts before submitting a bankruptcy application to the court. In addition, creditors have the following ways to protect their claims:
1. Mortgaged claims. For business activities or investment activities, the most effective way of protection is mortgage, that is, the borrower is required to mortgage the same amount of property. In bankruptcy proceedings, the mortgaged property of the bankruptcy applicant can be used to pay off the creditors' debts according to law. If the property value is calculated according to the date of filing for bankruptcy, when the property value is less than the mortgaged creditor's rights, the creditor's rights not obtained by the mortgaged creditor will be regarded as unsecured creditor's rights, and will be compensated in proportion with other unsecured creditors.
2. Non-mortgage creditors. Non-mortgage creditors face great risks in bankruptcy proceedings. Only after the bankruptcy court has paid off the government tax and mortgage creditor's rights will it be distributed among unsecured creditors in proportion. Therefore, non-mortgage creditors rarely get 100% repayment. The interest on their investment is seldom fully recovered.
3. Creditors will also restrict the debtor's right to transfer his property to a third party. In this case, the creditor has the right to review the financial situation of the third party before the debtor transfers his property to the third party, so as to prevent the debtor from transferring his debt to an operating entity or individual with financial risks, thus avoiding the situation that his debt cannot be repaid and his creditor's rights cannot be realized in the future.
4. The bankruptcy applicant shall not transfer his declared bankrupt property. After filing a bankruptcy application, the bankruptcy applicant shall not transfer the property that he applied for bankruptcy. If the bankruptcy applicant wants to dispose of these properties, they must not be lower than their market value. Bankruptcy applicants are also not allowed to fully pay off one creditor's debts and ignore other creditors. When the above situation occurs, the bankruptcy executor has the right to recover these properties. For creditors, before accepting these transferred properties, it is necessary to find out whether these transferred properties are within the scope permitted by the court and conform to the provisions of the law. Otherwise, these attributes may still be restored.
5. Guarantor or debtor. During the bankruptcy application, the creditor found other guarantors or debtors. This method is very popular with creditors. Due to the guarantor or * * * relationship with the debtor, part of the property of the bankruptcy applicant will not be protected by the bankruptcy law, and the creditor may also obtain all or part of his creditor's rights through the guarantor or * * * relationship with the debtor. For the guarantor or the * * * co-debtor, before they sign the guarantee or the * * * joint debt agreement, or in the letter of guarantee, it can also be clearly stipulated that the debts they guarantee or jointly undertake shall be in breach of contract? Wealth? So it doesn't matter, the creditor can't recover the debt from the guarantor or debtor.
6. Contract protection. Both parties to the contract can stipulate in the loan or investment contract that if there is a dispute, the creditor can not only get the creditor's right, but also get the lawyer's fee and other expenses for recovering the debt. The loan contract may also stipulate that the debtor shall not use or dispose of the property used for debt repayment or the property used as security. If the creditor is worried that the debtor may file a bankruptcy application with the court in the future, it is particularly important to clarify these situations in the loan contract. In short, both creditors and bankruptcy applicants must protect the legitimate rights and interests of all parties in bankruptcy proceedings in accordance with the provisions of the law. In order to protect creditors from losing their rights and interests because bankruptcy applicants apply for bankruptcy, the best way is to make clear provisions on these issues when signing investment, loans or other contracts involving property. Any clause about debt repayment in the contract should be signed after consulting a lawyer, so as to prevent the debtor from submitting bankruptcy application to harm the interests of creditors. If the debtor applies for bankruptcy, the creditor must quickly review the notice of the court and evaluate the debtor's existing property to protect his legitimate rights and interests.
American bankruptcy law has bankruptcy code, and enterprise bankruptcy is in chapter 1 1. In the United States, bankruptcy is usually called bankruptcy protection, that is, it is not bankruptcy in the true sense, but that this enterprise, under the protection of the court, avoided the creditor's debt collection within six to nine months, giving the bankrupt enterprise a breathing space to reorganize the company and strive for the company to return to normal operating conditions. It can be said that this is still very lenient for bankrupt companies. Personal bankruptcy cases in the United States are stipulated in Chapter 13 and Chapter 7 respectively. Chapter 13 refers to an act of suspending bankruptcy, which means that the creditor pays off the creditor's money in batches within two to three years, but it must meet the secured loans below $250,000 and unsecured loans below $750,000. The provisions of the seventh sheet refer to direct bankruptcy, and there is no problem of repaying debts. Bankruptcy will cause personal credit loss, and declaring bankruptcy will cause personal credit loss. It will be difficult to get any loans from banks in the future. The next ten years.
Declaring personal bankruptcy is very simple. You only need to submit an application to the federal court and pay a fee of $200, or you can act as an intermediary such as a lawyer. The Enron and WorldCom cases had a great impact on the American economy, and the stock market plummeted, which made investors lose confidence in the performance and accounting statements of the American stock market and listed companies. The U.S. government is actively legislating to crack down on fraudulent acts of listed companies, including criminal charges against the heads of listed companies.
On July 26th, the United States passed the new bankruptcy law, making it particularly difficult to file for bankruptcy. At present, this bill is facing a vote in the US Congress. At present, many people in the United States are striving to file for bankruptcy before the implementation of this bill. The supervision of listed companies in the United States is multifaceted. First, the US Securities Regulatory Commission has the right to investigate listed companies. Basically, Congress has a special securities regulatory commission to supervise the securities market. Now, the US government is increasing the funds of the Securities and Futures Commission, so that the Securities and Futures Commission has more funds to hire personnel to conduct investigations, and is drafting a number of laws to supervise the securities market.