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10. Due to the failure to settle the debts due, Jianshe Garment Trading Co Ltd (Jianshe Co) was declared bankrupt by its creditors. In October 2010 the court rendered an order to accept the application of bankruptcy and designated a bankruptcy administrator. During the process of bankruptcy liquidation the bankruptcy administrator found that Jianshe Co had given up a credit of RMB 200,000 yuan owed by its affiliate enterprise in August 2009.
The bankruptcy administrator also found that some shareholders of Jianshe Co failed to made full capital contributions as prescribed in the agreement of incorporation.
Required:
Answer the following questions in accordance with the Enterprise Bankruptcy Law of China, and give your reasons for your answer:
(a) (i) State whether the action of giving up credit can be revoked during the process of liquidation;
(ii) State whether the court should grant an order to revoke the act of giving up credit.
(b) State how to deal with the matter of the lack of full capital contributions by some of the shareholders of Jianshe Co.
答案:
10 This question requires candidates to deal with the legal issue in relation to the revocation of an action of giving up credit by a debtor before the application of bankruptcy against whom is accepted by the court under the Enterprise Bankruptcy Law of China.
(a) (i) In accordance with Article 31 of the Enterprise Bankruptcy Law, a bankruptcy administrator is entitled to request the court to revoke the act of giving up the creditor’s right. Therefore, Jianshe Co’s act of giving up its creditor’s right was within the category of applicable acts by the bankruptcy administrator for revocation in the process of liquidation.
(ii) In accordance with Article 31 of the Enterprise Bankruptcy Law, one of the conditions for a bankruptcy administrator to plead for the revocation of such an act is that it takes place within one year before the acceptance the application of bankruptcy by the court. In the present case, although the act of giving up a creditor’s right was within the category of acts that might be revoked by the court, the court should not grant an order to revoke such an act. This is because the act had taken place in August 2009, more than one year before the court accepted the bankruptcy application.
(b) In accordance with Article 35 of the Bankruptcy Law, where the relevant court accepts an application for bankruptcy and finds that the shareholders of the debtor fail to discharge their capital contributions, the bankruptcy administrator shall request that these shareholders make the full capital contributions they have subscribed to, irrespective of the term for capital contributions. Therefore, the bankruptcy administrator shall request that shareholders of Jianshe Co make full capital contributions. The rule of prescription or time limitation is not applicable to the obligation of shareholders to make full capital contributions.
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