The longest time to close a civil case of first instance shall not exceed six months, and the longest time to close a civil case of second instance shall not exceed three months.
According to the provisions of Article 149 of China's Civil Procedure Law, a case tried by the people's court through ordinary procedures shall be concluded within six months from the date of filing the case. If there are special circumstances that need to be extended, it can be extended for six months with the approval of the president of our hospital; If an extension is needed, it shall be reported to the people's court at a higher level for approval.
Article 161 When a people's court tries a case by summary procedure, it shall conclude the case within three months from the date of filing the case.
Article 176 The people's court shall conclude an appeal case against the judgment within three months from the date of filing the case of second instance. If there are special circumstances that need to be extended, it should be approved by the president of our hospital.
When the people's court hears an appeal case against the ruling, it shall make a final ruling within 30 days from the date of filing the case of second instance.
If the case cannot be concluded as scheduled because of the complexity of the case or other circumstances, it is not necessarily that the judge has handled the case illegally. However, the judge should submit the case with extended trial period to the higher court or the president for approval, and the trial period can be extended only after approval, otherwise it must be concluded regularly.
Secondly, cases that are postponed after approval are not extended indefinitely, and they must also be closed within the specified time.
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Related cases:
The creditor's rights of a joint-stock company in Liaoyuan City, Jilin Province have not been paid off since it was transferred in 2007. On October 20 10, 1 1 year 10, the company applied for bankruptcy to Liaoyuan Intermediate People's Court and entered bankruptcy proceedings. The total amount of claims declared by our company reached more than RMB 35 million. However, it has been nearly five years since the court and the bankruptcy liquidation group did not evaluate the company's assets, nor did they hold the first creditors' meeting.
In June 2007, our company received the company's creditor's rights from the Changchun office of China Orient Asset Management Corporation, and the transfer of the creditor's rights was approved by the National Development and Reform Commission and filed with the State Administration of Foreign Exchange.
On 20 10,1,Liaoyuan Intermediate People's Court made a civil ruling of (2065 438+00) Liao Min Pozi No.3-1on 20/kloc-0, and put on record the bankruptcy case of this company. On 20 10, 12 and 10, the court issued (20 1 1) the notice of creditor's rights of Liao Min No.3, requiring all creditors to declare their claims in writing to the administrator within 1 month after receiving the notice.
The notice also stated that the first creditors' meeting was held at 9: 00 am on March 2, 20 1 1 in the third court of Liaoyuan Intermediate People's Court.
On 20 1 1, our company submitted the creditor's rights declaration materials to the bankruptcy administrator, and declared the secured creditor's rights of more than 35 million yuan. Subsequently, our company contacted the court to determine the time and place of the first creditors' meeting. The court replied that "the first creditors' meeting was postponed, and the specific time was to be determined". After that, I contacted many times and got the answer "Time to be determined". So far, the first creditors' meeting has not been held.
After entering the bankruptcy proceedings, the bankrupt company still rents a building and collects rent. However, the court and the bankruptcy liquidation team have not completed a comprehensive audit of the company's financial situation for four years, nor have they taken any assessment, audit or other security measures for the building and rental income. The long-term stagnation of bankruptcy proceedings has seriously affected the rights and interests of legitimate creditors and damaged the authority and seriousness of the law.
In response to the situation reflected in the letter, the reporter called the judge in charge of the case and got the explanation that "the evaluation and review work has not been completed". Because "further interviews need to be approved by the hospital", the reporter contacted Liaoyuan Intermediate People's Court and faxed the interview outline, but as of press time, no response was received. Legal experts expressed their views on related issues.
The first creditors' meeting was delayed, which violated legal procedures.
"The bankruptcy proceedings lasted for five years, but the first creditors' meeting has not yet been held, which is problematic in legal procedures. Wang Xinxin, a professor at the Law School of Renmin University of China, pointed out that according to the provisions of the Enterprise Bankruptcy Law, the first creditors' meeting should be held within 15 days from the expiration of the time limit for filing claims.
This is the time clearly stipulated by law and should be observed. If the court considers that there are special reasons that affect the timely convening of the first creditors' meeting, it may postpone the convening.
However, first of all, the extension should be justified. The reason why the first creditors' meeting is not held on the grounds that the audit work has not been completed cannot be established. The convening of the first creditors' meeting is not necessarily related to the completion of audit and evaluation. The first creditors' meeting doesn't solve all the problems. Some things can be solved at later creditors' meetings.
Moreover, Liaoyuan Intermediate People's Court accepted the bankruptcy case of the company on 2010/1,and the audit and evaluation work has not been completed for nearly five years, which is abnormal.
In practice, it is rare that the first creditors' meeting must be postponed. The reasons for the extension usually include: the declaration and confirmation of creditor's rights cannot be completed in time, and the qualification of most creditors to attend the meeting is difficult to determine; The handling of other cases or events directly affects the follow-up of bankruptcy proceedings.
Second, the extension must be notified, and appropriate notification methods should be adopted. Since the notice of creditor's rights informs the time of the first creditors' meeting in writing, it should also be used to inform the later extension.
For known creditors and declared creditors, it shall be notified in writing, and for unknown or undeclared creditors, it shall be served by public announcement. In short, the same method should be used to inform the meeting and postpone the meeting.
Professor Wang Xinxin also analyzed the damage that a protracted bankruptcy case may cause to creditors. He pointed out that not convening the first creditors' meeting for such a long time may lead to further losses of the debtor's property:
If the debtor continues to exist, there will be certain expenses, such as the maintenance of plant equipment, the increase of bankruptcy expenses such as the salary payment of left-behind personnel, which will cause losses to the interests of creditors; The creditor's rights that should be realized are not realized in time, and the money that should have been obtained a few years ago is not obtained, which is also a kind of right damage.
In addition, the debtor's fraudulent behavior that harms the interests of creditors before the start of bankruptcy proceedings may not be corrected in time, resulting in the inability to recover the property.
The stipulation that there is no trial limit for bankruptcy cases exposes legislative defects.
People in the legal profession also expressed their views on the legislative defects of bankruptcy cases. Song Gang, a lawyer of Beijing Huacheng Law Firm, pointed out that the law does not stipulate the trial period of bankruptcy cases, leaving room for irregular operation. However, he also stressed that DAC, as a creditor, has the right to know and supervise the progress of bankruptcy cases and the management of bankruptcy property by the administrator.
Even if the audit and evaluation work has not been completed, the creditor has the right to know how far the audit and evaluation work has progressed, and the court should also inform the creditor of the real reason for the delay.
On this issue, He Dan, an associate professor at the Law School of Beijing Normal University, holds a similar view: "At present, the Enterprise Bankruptcy Law and the Civil Procedure Law do not stipulate the time limit for bankruptcy proceedings, but in fact, protracted bankruptcy cases will cause certain damage to the rights and interests of creditors. No trial limit can be said to be a shortcoming of the law. "
Professor Wang Xinxin believes that the reason why the case has been delayed for a long time is not only the defects in legal provisions, but also the misunderstanding of the trial limit. He believes that there is no time limit for bankruptcy cases, but only provides the necessary time for the court to handle the case.
However, the time of the first creditors' meeting and the trial period of bankruptcy cases are two different things, and the first creditors' meeting has a statutory time limit. Moreover, there is no time limit for the trial of bankruptcy cases, which does not mean that it can be delayed indefinitely without justifiable reasons and harm the interests of creditors by inaction. If the bankruptcy proceedings drag on for four or five years and the first creditors' meeting has not been held, it is definitely illegal.
People's Network-Who will protect the creditor's rights if the bankruptcy case is delayed for a long time?
Baidu Encyclopedia-People's Republic of China (PRC) Civil Procedure Law