The nature of claims for relocating construction fees for civil air defense projects in bankruptcy
Editor's note: During bankruptcy proceedings, although the construction of civil air defense projects is national defense infrastructure, it involves national security and public interests. , however, the law does not give the relocation construction fee the statutory priority for payment. Based on a comprehensive analysis of the legislative principles and charging standards of the relocation construction fee for civil air defense projects, it should be an administrative fee, a public law creditor's right, and should be recognized as an ordinary creditor's right. And the order of payment shall be treated differently. Among bankrupt real estate companies, there are usually developers who have not built civil air defense projects and have defaulted on paying civil air defense project relocation construction fees to the government civil air defense office. When the Government Civil Air Defense Office, as a known creditor, declares civil air defense relocation construction costs to the administrator, it often happens that it declares priority for repayment of the construction project price, declares priority for repayment, and declares ordinary claims. In order to clarify the misunderstandings about the relocation construction fee of civil air defense projects in practice and facilitate the administrator to determine the nature of the creditor's rights, this article discusses it through judicial practice cases.
1. Concept of civil air defense relocation construction fee Civil air defense project relocation construction fee refers to the construction unit that cannot comply with the Civil Air Defense Law and related regulations in civil construction projects due to geological, terrain, construction and other objective conditions. For the simultaneous construction of air defense basements, the civil air defense project relocation construction fee must be reported to the civil air defense authority for approval and paid to it in accordance with relevant standards, involving national security and public interests, and has the nature of administrative charges.
2. Cases of disputes over civil air air defense relocation construction fees. Searching the database for civil air defense project construction fees and bankruptcy, only five disputes arising from the administrator's confirmation of civil air defense relocation construction fees were retrieved. There are few cases. Judicial Case No. Case No. Civil Air Defense Office Disputes over Relocation of Civil Air Defense Construction Fees in Bankruptcy Judgment Result of Main Claims 1 (2018) Hubei 10th Bank reviewed Administrative Non-litigation Case No. 1, and the Civil Air Defense Office investigated and dealt with the developer’s arrears in paying civil air defense relocation construction fees. After an administrative penalty was imposed, the developer failed to implement the administrative penalty due to bankruptcy. The Civil Air Defense Office applied to the court for enforcement, but the application was not approved. The executor, Songzi Civil Air Defense Office, made a decision on Songzi Civil Air Defense Processing on September 21, 2017 (2017 ) Administrative Processing Decision No. 02 2 (2018) Lu 0124 Minchu No. 3179 claimed that the relocation construction fees of civil air defense projects have priority in the bankruptcy estate; during the court session, it was changed to a petition confirming the relocation construction costs of civil air defense projects. The claim is rejected because the expenses are ordinary claims, and the claim is supported by the administrator’s confirmation that it is an inferior claim. 3 (2019) E 2827 Minchu No. 1806 claims that the relocation construction fee of the civil air defense project has priority in receiving payment for the project. The claim is rejected, and the claim is supported by the administrator’s confirmation. For ordinary claims 4 (2019) Shaanxi 01 Minchu No. 857, the civil air defense project relocation construction fee and late payment fees have priority to be repaid; the petition is rejected and the administrator is supported to confirm that the civil air defense project relocation construction fee is an ordinary claim and will not be confirmed Review results of late payment fees 5 (2020) Ji 1125 Minchu No. 319 petition to confirm the claim for the relocation construction fee of the civil air defense project in the amount of 1,217,280 yuan. In support of the petition, it was confirmed that the plaintiff had the claim for the relocation construction fee of the civil air defense project in the amount of 1,217,280 yuan. The court did not recognize the claim. nature, but the administrator recognizes it as an ordinary creditor's right. Through the above cases, we can see that the main dispute that arises when disputes are brought to court is the creditor's and the administrator's different perceptions of the nature of the creditor's right for the relocation of civil air defense project construction costs. The Civil Air Defense Office of the government agency usually believes that the civil air defense relocation construction costs collected as a matter of public power should have priority for repayment, but the administrator recognizes it as an ordinary claim based on the principles of bankruptcy law, and some administrators even recognize it as a subordinate claim.
3. Viewpoints of this article
This article believes that the legal priority for compensation must be clearly stipulated by the law. There is no legal basis for the relocation of civil air defense project construction fees as a priority for bankruptcy. The intermediate manager should determine it as an ordinary creditor's right. First, there are two main types of priority rights to compensation stipulated in the current law. One is procedural priority. According to the provisions of the Patent Law and Trademark Law, specific people have the priority to apply for patents and register trademarks under special circumstances; the other is procedural priority. Substantive priority, that is, civil priority rights. Common civil priority rights in bankruptcy are divided into two types. One is general priority, which enjoys the priority right to payment of all the property of the debtor in bankruptcy; as stipulated in Article 113 of the "Enterprise Bankruptcy Law", employee claims, taxes and payment claims.
The second is special priority, which means the debtor has priority to be repaid on specific properties in bankruptcy, such as property-secured claims based on agreed reasons; priority on specific movable assets such as ships and aircraft, and construction project funds based on statutory reasons. The law does not stipulate that the relocation construction costs of civil air defense projects have priority in receiving compensation.
Second, the civil air defense project relocation construction fee is an administrative charge of a public law nature and does not have the nature of enjoying the civil priority right to compensation. Article 28 of the Minutes of the National Bankruptcy Trial Conference (2018) stipulates the principles and order of repayment of bankruptcy claims. The second and third sentences of this article stipulate that for claims that do not clearly stipulate the order of repayment by law, the people's court may prioritize claims for personal injury compensation over property claims, private law claims over public law claims, and compensatory claims over punitive claims. principles to reasonably determine the order of repayment. The remaining property after the bankruptcy property has been paid off in accordance with the order stipulated in Article 113 of the Enterprise Bankruptcy Law can be used to pay off punitive claims such as civil punitive damages, administrative fines, and criminal fines that occurred before the bankruptcy was accepted. This article establishes the spirit of the state not to compete with the people for interests. Claims arising from public power should be inferior to claims arising from private law reasons, and claims arising from punishment by public power should be inferior to civil rights and compensatory rights. Although the relocation construction costs of civil air defense projects are incurred due to the construction of national defense projects and have public interest attributes, they are essentially public law claims and cannot enjoy the exception of priority over civil rights for payment.
Thirdly, the relocation construction costs of the civil air defense project are regarded as inferior claims and have no legal basis. The "Enterprise Bankruptcy Law" does not have independent and clear provisions on the types of claims. It only stipulates the order of repayment in Article 113, and this article only clarifies that different types of claims among ordinary claims can be Enjoy the order of distribution. Article 28 of the "Minutes of the National Bankruptcy Trial Conference" (2018) only stipulates the principles and order of repayment of bankruptcy claims. At present, inferior claims are an independent type of claims and have no legal basis. However, there are legal provisions for the distribution and repayment of some special claims among ordinary claims in the order in which they are paid. Therefore, there is no law that stipulates that the relocation construction costs of civil air defense projects have priority in payment and should be recognized as ordinary claims; there is no law that clearly stipulates the order of payment, and public law claims should be paid after private law claims are paid.
IV. Practical Summary
In practice, the bankruptcy administrator should pay attention to:
(1) As the department that collects and pays civil air defense relocation construction costs, the Civil Air Defense Office has The creditor has the right to declare claims, usually a known creditor. The administrator should assist the court in accordance with Article 14 of the Enterprise Bankruptcy Law to notify the civil air defense office to declare claims in accordance with the law.
(2) The manager and the government civil air defense office shall communicate in advance and effectively about the amount, nature, and order of payment of claims for civil air defense relocation construction costs to avoid misunderstandings and disputes.
(3) The administrator confirms the creditor's rights, distinguishes the categories of creditor's rights, and the issue of payment of creditor's rights cannot be confused; distinguishes the civil air defense project relocation construction fees and late payment fees, and handles the fees and late payment fees separately; and cannot exceed The law stipulates the identification of the type and nature of claims.
(4) In view of the professional nature of bankruptcy business, the government civil air defense office can consult a lawyer in advance or entrust an attorney to declare claims in advance, and respond to claims declarations and other enforcement matters in a timely, legal and compliant manner.
5. Relevant Legal Provisions Article 113 of the "Enterprise Bankruptcy Law" stipulates: After giving priority to the bankruptcy expenses and interest debts, the bankruptcy property shall be paid in the following order: (1) Bankruptcy The wages, medical care, disability benefits and pensions owed to employees by a person, the basic pension insurance and basic medical insurance expenses owed should be transferred to the employees' personal accounts, and the compensation that should be paid to employees according to laws and administrative regulations; ( 2) Social insurance premiums owed by the bankrupt other than those specified in the preceding paragraph and taxes owed by the bankrupt; (3) Ordinary bankruptcy claims. Article 28 of the "Minutes of the National Court Bankruptcy Trial Work Conference" stipulates: The principles and order of repayment of bankruptcy claims. For claims that do not clearly stipulate in the law the order of repayment, the People's Court can reasonably determine the order of repayment in accordance with the principle that personal injury compensation claims have priority over property claims, private law claims have priority over public law claims, and compensatory claims have priority over punitive claims. Compensation for personal damages caused by the debtor's tortious behavior can be paid in accordance with the order specified in Article 113, Paragraph 1, Item 1 of the Enterprise Bankruptcy Law, except for the punitive damages involved.
The remaining property after the bankruptcy property has been paid off in accordance with the order stipulated in Article 113 of the Enterprise Bankruptcy Law can be used to pay off punitive claims such as civil punitive damages, administrative fines, and criminal fines that occurred before the bankruptcy was accepted. Article 22 of the "Law of the People's Republic of China on Air Defense": Newly built civilian buildings in cities must build basements that can be used for air defense in wartime in accordance with relevant national regulations. Article 16 of the "Implementation Measures of Shandong Province": For new civil buildings in cities, the construction unit shall build an air defense basement in accordance with national regulations; if it is not suitable to build, it must be reported to the civil air defense department for approval, and the relocation construction fee must be paid in accordance with regulations. The competent department organizes off-site construction. Jinan Municipal Development and Reform Commission, Finance Bureau, and Civil Air Defense Office "Notice on Regulating the Collection and Payment of Relocation Construction Fees for Civil Air Defense Projects and Other Relevant Issues" Jifa Gaiwu Price [2017] No. 375 stipulates in paragraph 3: Relocation construction fees for civil air defense projects belong to the government's non-tax revenue .