Set up a liquidation group
According to the Enterprise Bankruptcy Law of the People's Republic of China (for Trial Implementation) (1986 12.02) and the opinions of the Supreme People's Court Municipality on Implementing Several Issues (for Trial Implementation) > (19911.
I. Entering bankruptcy liquidation procedures
Bankruptcy liquidation procedure is a part of bankruptcy system, and the entry of bankruptcy liquidation procedure depends on the beginning of bankruptcy procedure. According to China's laws, enterprises enter the bankruptcy procedure according to the following steps: first, enterprises that have suffered serious losses and are unable to pay off their due debts, their creditors or debtors file bankruptcy applications with the court where the enterprises are located; Secondly, the people's court ruled that the enterprise was declared bankrupt according to law, and the enterprise officially entered the bankruptcy procedure.
Second, set up a liquidation group.
After the enterprise enters bankruptcy proceedings, the people's court shall set up a liquidation group within 05 days from the date of announcement. The liquidation group shall be appointed by the people's court and the people's government at the same level, and shall be composed of personnel from the higher authorities of the enterprise, finance, planning commission, auditing, taxation, price, labor and personnel, industrial and commercial administration and other professionals, such as lawyers and accountants.
Three. Preparations before the establishment of the liquidation group
* The court appoints the personnel of the liquidation team; * Engraving the seal of the liquidation group; * Open an account in a bank.
IV. Clarify the main responsibilities of the liquidation group and carry out internal division of labor V. Take over the bankrupt enterprise as a whole.
When the liquidation group was formally established and stationed in the bankrupt enterprise, the liquidation group officially replaced the bankrupt enterprise to operate in its own name. The overall takeover of bankrupt enterprises includes the following tasks:
* Receiving the seal of the bankrupt enterprise;
* Obtain the business license of bankrupt enterprise as a legal person; * Receiving important documents and contracts of bankrupt enterprises; * Financial income of bankrupt enterprises; :: Receiving the property of bankrupt enterprises. After taking over the bankrupt enterprise in an all-round way, the liquidation group, as an entity to replace the bankrupt enterprise, must also carry out necessary management on the bankrupt enterprise, including:
* personnel management of bankrupt enterprises, such as the determination of left-behind personnel, the placement of employees and the management of personnel files; * Managing the production and operation of bankrupt enterprises;
* Asset management of bankrupt enterprises, such as fixed assets management, current assets management, intangible assets management, investment assets management and construction in progress management;
* Financial management of bankrupt enterprises, such as management of financial account books and financial vouchers, management of bank accounts and management and control of daily expenses.
Main responsibilities and internal division of labor of the liquidation group
I. The main responsibilities of the liquidation group are as follows:
* Take over bankrupt enterprises. Including the management of the property of bankrupt enterprises, taking over the seals, financial account books and vouchers, important documents and contracts of bankrupt enterprises, etc.
* Responsible for the custody, cleaning, valuation, disposal and distribution of bankrupt property;
* Responsible for receiving debts paid off or property delivered by debtors and property holders of bankrupt enterprises; * Deciding to terminate or continue to perform the unfulfilled contract of the bankrupt enterprise; * Audit the financial affairs of bankrupt enterprises and issue audit reports; * Clean up the bankruptcy claims and review the claims declared by creditors;
* Clean up the external creditor's rights of bankrupt enterprises and recover the external creditor's rights and foreign property of bankrupt enterprises according to law; * Ask the chairman of the creditors' meeting or the court to convene the creditors' meeting as required; * To formulate the distribution plan of bankruptcy property and submit it to the court for approval and implementation after discussion by creditors; * The property belonging to others in the bankrupt enterprise shall be retrieved by the creditors of the property through the liquidation team; * After paying off the debts secured by property, recover the collateral of the bankrupt enterprise;
* 1, during the period from six months before the court accepts the case to the end of the bankruptcy proceedings, concealing the private share of the bankrupt enterprise or transferring the property without compensation; 2. Selling property at an abnormally low price; 3. Provide property guarantee for the original debts without property guarantee; 4. Pay off the outstanding debts in advance; 5. If the liquidation group abandons its creditor's rights, it has the right to apply to the court for recovering the property.
* After the distribution of bankruptcy property is completed, apply to the court for a ruling to terminate the bankruptcy proceedings; * After the bankruptcy proceedings, cancel the registration with the original registration authority of the bankrupt enterprise; * Decide whether the bankrupt enterprise will continue its production and operation from the date of bankruptcy declaration.
Second, the division of labor within the liquidation group.
(1) Work of the head of the liquidation team (generally held by a lawyer):
* Formulate the work plan of the liquidation group and report to the court;
* Preside over the liquidation work of the liquidation group, including determining the division of labor, mastering the liquidation progress, dealing with the problems in liquidation and coordinating the relationship between all aspects of liquidation;
* Liaise with the court and report to the court;
* Signing contracts, participating in negotiations, attending meetings and representing the liquidation group; * Drafting various reports submitted to the court and creditors' meeting on behalf of the liquidation group; * Take charge of the official seal of the liquidation group; * Approve bankruptcy liquidation expenses;
* Attend the creditors' meeting and make a work report on behalf of the liquidation group;
* Preside over the liquidation meeting and form the minutes of the liquidation meeting of the liquidation group.
(2) The lawyer's work in the liquidation group includes:
* review of creditor's rights of bankrupt enterprises;
* Review of external creditor's rights of bankrupt enterprises; * Definition of property right of bankrupt enterprise property;
* Clarify the equity ratio and equity ratio invested by bankrupt enterprises, including project investment and legal entity formed by investment, and be responsible for drafting equity transfer and equity transfer agreement;
* Acting as an agent for bankrupt enterprises to sue and respond to lawsuits; * To review the exercise of the right of repossession by property owners;
* Responsible for reviewing the contracts signed and being performed by bankrupt enterprises and deciding whether to continue to perform them; * Responsible for reviewing the contents of the right of set-off and immunity.
(3) The internal accounting work of the liquidation group includes:
* Responsible for verifying the amount of creditor's rights of bankrupt enterprises and compiling the list of creditor's rights of bankrupt enterprises;
* Be responsible for verifying the amount and formation process of foreign creditor's rights of bankrupt enterprises, sorting out relevant evidence and compiling the inventory of foreign creditor's rights of bankrupt enterprises;
* Responsible for reviewing the payment of registered capital of bankrupt enterprises and making a positive conclusion; * Responsible for the amount of foreign investment of bankrupt enterprises and the collection and collation of relevant evidence materials;
* Be responsible for understanding the whereabouts, profits and losses of all funds of bankrupt enterprises, analyzing the reasons for bankruptcy and notifying creditors; * Responsible for clearing the assets of bankrupt enterprises and compiling the inventory of bankrupt assets;
* Be responsible for knowing the number of employees, wages and social insurance of bankrupt enterprises; * Be responsible for finding out the tax situation.
(4) The work appraiser of the internal appraiser of the liquidation group is appointed as a member of the liquidation group in some cases, and is generally responsible for evaluating the property according to the information about the property provided by the liquidation group as the reserve price for the liquidation group to deal with the bankrupt property.
The work of the auction house in the liquidation group. In some cases, the auction house is designated as a member of the liquidation group, and is generally responsible for publicly auctioning the bankrupt property according to the entrustment of the liquidation group and the property right certification materials provided by the liquidation group, and assisting the bidders to handle the transfer procedures.
Financial audit of bankrupt enterprises
After the liquidation group takes over the bankrupt enterprise completely and carries out necessary management, it begins a series of liquidation activities for the bankrupt enterprise, one of which is to audit the financial affairs of the bankrupt enterprise, and should pay attention to the following contents:
(1) Basic information of the bankrupt enterprise company, such as company registration, shareholders' situation and shareholding ratio, registered capital and status of the bankrupt enterprise, etc.
(2) Financial management of bankrupt enterprises:
* Financial personnel and changes of bankrupt enterprises; * keeping financial vouchers and account books; * account records;
* financial examination and approval, such as the expenditure procedures of the supervisor. ;
* The authenticity and completeness of financial books and original vouchers.
(3) Liabilities of bankrupt enterprises
(4) Cases involving bankrupt enterprises, including cases in which the bankrupt enterprise acted as the original defendant, the execution of lost cases and cases in which the bankrupt enterprise did not act as the original defendant but provided property mortgage or business guarantee for other companies. (five) the main assets of bankrupt enterprises, as matters of great concern to creditors, should generally be specified:
* Funds used for investment and recovery, losses and reasons;
:: Repaying the principal and interest of funds used to repay debts and pay fines; * Funds and losses invested in production and operation; * Office expenses; * funds for purchasing fixed assets;
* funds used to pay wages, bonuses, insurance and state taxes;
* loan amount, borrower, time, amount and approver; :: Fines and confiscation by relevant departments.
(six) the audit of the legal representative, principal responsible person and financial personnel of the bankrupt enterprise. (seven) the existing employees, financing, insurance and tax payment of bankrupt enterprises. (eight) whether the bankrupt enterprise has invalid behavior six months before accepting the bankruptcy case.
Liquidation of bankruptcy property
Mainly refers to the liquidation group to keep, clean up, evaluate, dispose of and distribute the property of bankrupt enterprises.
(1) Liquidation of assets of bankrupt enterprises.
This mainly refers to the activities of the liquidation group to define the ownership, divide the scope and register the property of bankrupt enterprises. For example, the determination of the ownership of bankrupt property is mainly to distinguish and determine what is the property of bankrupt enterprises, what is not the property of bankrupt enterprises and what is controversial property after the bankrupt enterprises hand over the property.
Confirmation of the property scope of bankrupt enterprises. Generally, it includes the following parts: all the property of the bankrupt enterprise at the time of bankruptcy declaration; Property acquired after bankruptcy declaration and before the end of bankruptcy proceedings; Patent, trademark, copyright, proprietary technology, trade name and other property rights exercised by bankrupt enterprises. ; A part of the property used as collateral, the realization price of which exceeds the amount of debt it guarantees.
Verification of the natural condition of bankrupt enterprises' property. This division of labor is mainly to verify and confirm all the property of the enterprise, generally to verify and confirm the tangible assets of the enterprise, including the name, formation time, original value, location model, old and new degree, and whether the legal procedures are complete.
(2) Assets evaluation of bankrupt enterprises. This is a reference price and reserve price of bankruptcy property preparation, which is generally carried out by professional appraisers.
(3) Disposal of assets of bankrupt enterprises. Generally speaking, it refers to the process that the liquidation group turns the non-monetary property in the bankruptcy property into monetary property, which is the last work of the whole property liquidation. The general liquidation group follows the principles of openness, fairness and impartiality, and follows the procedures of first valuation, then publicity and finally discussion and approval at the creditors' meeting. After the investigation of creditor's rights is completed, it will be conducted by private sale or public auction.
Because according to the provisions of the bankruptcy law, the property that has been used as collateral does not belong to bankruptcy property, the following procedures are adopted:
* The court separately registers the secured property of bankrupt enterprises;
* The mortgagee will hand over all the supporting materials of the secured property to the liquidation group;
* The mortgagee shall hand over the secured property directly owned or managed by him to the liquidation group;
* The mortgagor shall issue a written certificate to the liquidation group to terminate the mortgage relationship, and the liquidation group shall handle the handover procedures of the secured property; * The liquidation group will hand over the secured property to the auction house for auction;
* The liquidation group will hand over the auction money of mortgaged property to the mortgagee after deducting the expenses respectively.
Liquidation of foreign investment
Enterprises' foreign investment generally has three forms: project investment, securities investment and equity investment. Therefore, the liquidation of foreign investment of bankrupt enterprises is also divided into:
(1) Project investment liquidation of bankrupt enterprises. First of all, we should know the specific situation of the project, including relevant legal documents, the actual investment of bankrupt enterprises in the project, the actual operation of the project itself, and the implementation of the investment agreement by all investors. Then, it is necessary to entrust an appraiser to evaluate the investment rights and interests of bankrupt enterprises in the project and the project. After obtaining the corresponding reference, the liquidation group will deal with the investment of the project. There are generally two ways: liquidation or paid transfer of investment rights and interests.
(2) Securities investment liquidation of bankrupt enterprises. Before liquidation, you should generally know the following information: * Securities investment certificate; :: Ownership of securities; :: Status of investment;
* The amount and time of investment.
Due to the special form of securities investment, it should generally be handled in accordance with the relevant state regulations on securities trading. (3) Liquidation of equity investment of bankrupt enterprises. Generally speaking, the equity investment of an enterprise includes the establishment of a new company and the establishment of a joint venture with others
There are two ways of wholly-owned subsidiary. For the former, it is necessary to know the registration of the invested enterprise, the investment of other shareholders, and the financial status and assets and liabilities of the enterprise. Due to the special form of equity investment, it cannot be handled by general sale or auction, and it must be transferred in accordance with the procedures stipulated by relevant laws. For the latter, in addition to understanding its registration, assets and liabilities, production and operation, economic benefits, etc., it is more important to decide whether and how to merge the assets of subsidiaries into bankrupt enterprises for liquidation.
Liquidation of external claims
The liquidation of foreign creditor's rights generally includes two aspects: one is to clear out the real foreign creditor's rights and the so-called foreign creditor's rights; The first is to actually recover the confirmed foreign creditor's rights.
(1) Procedures and steps for clearing the external creditor's rights of bankrupt enterprises:
Accountants of the liquidation group shall audit the accounts receivable of bankrupt enterprises and prepare account books; According to the accounts receivable, the lawyers of the liquidation group understand the formation process and evidence of each account receivable through the conversation with the legal representative or insider of the bankrupt enterprise;
Lawyers of the liquidation group shall, according to the audit report and relevant evidence, draft a report on the confirmation of foreign creditor's rights of bankrupt enterprises and submit it to the court. (2) Procedures and steps for the recovery of foreign creditor's rights of bankrupt enterprises:
Understand the basic situation of the debtor; Investigate unknown debtors;
For the amount recognized by the known debtor, make a list and apply to the court for repayment of the financial notice; Serve the debtor with a notice of financial repayment; Do a good job in debt collection registration;
The declaration and examination of bankruptcy claims is also an important part of bankruptcy liquidation, which can also be called liquidation of bankruptcy claims. Since bankruptcy claims are mainly legal issues, lawyers play an important role in this process.
(a) the declaration of bankruptcy claims
This work is mainly for creditors to report to the court, and the work of the liquidation group is very little.
(2) Audit of bankruptcy claims
The main work of the liquidation group in the liquidation of bankruptcy claims is to review them, which mainly includes: * the time limit for filing bankruptcy claims; :: Limitation of bankruptcy claims; * The basis for the formation of bankruptcy claims; * Calculation of bankruptcy claims;
:: Review the repeated filing of bankruptcy claims; * Prepare a list of bankruptcy claims.
There is also a review of secured claims. After all audits are completed, a bankruptcy creditor's rights audit report and a bankruptcy creditor's rights confirmation report will generally be issued.
Clean up the contract of bankrupt enterprises
First, clean up the contracts of bankrupt enterprises, and then the liquidation group decides whether to continue to perform or terminate the contracts that have been signed and come into effect by bankrupt enterprises.
(1) The liquidation contract of a bankrupt enterprise includes the following contents:
:: Cleaning up contract categories; * Clean up the performance of the contract;
* Clean up the litigation of contract disputes;
* Clean up the contents of the contract, especially the main rights and obligations; * Clean up the effectiveness of the contract.
(2) The liquidation group shall decide whether to continue to perform or terminate the contract of the bankrupt enterprise on its own according to the principle of maximizing interests.
Clearing up litigation cases involving bankrupt enterprises
Cases involving bankrupt enterprises should be cleared from two aspects: cases in which bankrupt enterprises are defendants and cases in which bankrupt enterprises are plaintiffs. For the liquidation team, the following contents should be paid attention to when cleaning up bankrupt enterprise cases:
(a) the situation of the parties to the case;
(2) The content and basis of the litigation request;
(3) Cases accepted by the court;
(four) the court's trial of the case and the trial results;
(five) the court closed the case.
After finding out the cases involving bankrupt enterprises, the liquidation group shall make a written report and submit it to the court.
Formulate the distribution plan of bankruptcy property.
The liquidation group has completed the liquidation and liquidation of bankrupt enterprises, some of which have been compiled into books, and some have mastered relevant evidence and materials. The next step should be to formulate the bankruptcy property distribution plan and distribute the bankrupt enterprise property.
First, formulate the bankruptcy property distribution plan. The plan shall include the following contents:
(1) The total amount and composition of the bankrupt property;
(2) The total amount of bankruptcy expenses that should be paid in priority and its composition;
(three) the total amount and composition of wages and social insurance premiums owed by bankrupt enterprises.
(four) the total amount of tax owed by the bankrupt enterprise and its composition;
(five) the total amount and composition of retained funds not allocated for the time being;
(6) The total amount and composition of the property used to distribute bankruptcy claims.
Two, the bankruptcy property distribution procedures according to the following steps:
(a) the liquidation group put forward the bankruptcy property distribution plan;
(2) The bankruptcy property distribution plan shall be submitted to the court for ruling before implementation after being discussed and approved by the creditors' meeting;
(3) The liquidation group shall make a distribution table within three days after the court confirms the bankruptcy property distribution plan;
(4) The liquidation group implements the distribution plan and notifies the creditors to collect the property within a time limit; If it is not collected within the time limit, it can be deposited;
(5) additional distribution.
Bankruptcy liquidation report
After completing all the bankruptcy liquidation work, the liquidation group shall make a bankruptcy liquidation report and submit it to the creditors' meeting and the court. The contents of the bankruptcy liquidation report include:
(1) The establishment of the bankruptcy liquidation group indicates the origin of the liquidation group.
(2) The main liquidation work completed by the liquidation group is divided into the following items:
* The specific time, content and personnel for taking over the bankrupt enterprise; * Designate the left-behind personnel and clarify their job responsibilities;
* Audit the financial status and audit results of bankrupt enterprises, including assets and liabilities; :: Clearing, evaluating and disposing of the assets of bankrupt enterprises and their results;
* the liquidation and recovery results of the bankrupt enterprise's external creditor's rights, and the problems encountered in the recovery; * liquidation and disposal of foreign investment of bankrupt enterprises, as well as the disposal results;
* liquidation and audit of bankrupt enterprises and audit results, including the total amount of bankruptcy claims, the total amount of claims secured by property and the total amount of claims unsecured by property, etc. ;
* The liquidation and liquidation team of cases involving bankrupt enterprises participated in the litigation;
* liquidation, termination and continued performance of contracts signed by bankrupt enterprises; * Resettlement of employees of bankrupt enterprises, unpaid wages and payment of social insurance premiums;
* Formulate the bankruptcy property distribution plan and implement the adopted bankruptcy property distribution plan.
(3) The whereabouts and recovery of the bulk funds of bankrupt enterprises mainly focus on who approved each fund, where it went, what it was used for, whether it was recovered, why it was not recovered, whether it was a loss, and whether it should be implemented one by one.
(4) On-the-job audit of legal representatives and managers of bankrupt enterprises.
(V) Analysis of the causes of enterprise bankruptcy, whether it is the enterprise management and operation mechanism, or the market environment or decision-making problems that lead to enterprise bankruptcy, who should bear the main responsibility for enterprise bankruptcy.
(six) how to deal with the bankruptcy liquidation case to study and solve the problems, such as the resettlement fees, wages and housing problems of employees, including the improvement of bankruptcy liquidation operation procedures.
After completing all the above work, the liquidation group has gone through relevant procedures, such as canceling the registration of the original bankrupt enterprise and requesting the court to terminate the bankruptcy procedure. And the liquidation group has been officially revoked, and the bankruptcy liquidation procedure of bankrupt enterprises has officially ended.