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10 Dalie Limited Liability Co (Dalie Co) applied to the people’s court for bankruptcy due to its poor business operations.
On 30 April 2012, the people’s court rendered an order to accept the bankruptcy application and designated a bankruptcy administrator. At this moment, Dalie Co faced the following key financial matters:
(i) Construction Company had brought a lawsuit against Dalie Co for its delay to pay the construction price due, but the case was still pending for trial;
(ii) Dalie Co owed a loan totalling RMB 20 million yuan to Industry Bank, of which RMB 12 million yuan was secured by a guarantee agreement on the buildings of Dalie Co;
(iii) Dalie Co had provided a guarantee to Merchant Bank for a loan of RMB 10 million yuan borrowed by Jiqing Company. The loan has matured but Jiqing Company failed to repay the principal and interest.
Required:
Answer the following questions in accordance with the Enterprise Bankruptcy Law of China, and give your reasons for your answers:
(a) state how to deal with the pending disputes between Construction Company and Dalie Co;
(b) state how to deal with the loan of RMB 20 million yuan owed to Industry Bank;
(c) state whether Merchant Bank was entitled to declare the credit and join the bankruptcy procedure.
答案：
10 This question requires candidates to deal with the legal issues relevant to the declaration of credits and the legal effect of bankruptcy procedures on the pending case under the Enterprise Bankruptcy Law of China.
(a) In accordance with Article 20 of the Enterprise Bankruptcy Law, after the people’s court accepts an application for bankruptcy, any pending civil action involving the relevant debtor shall be suspended. Hence, the pending case between Construction Company and Dalie Co should be suspended. The action can be resumed after a bank takes over Dalie’s assets.
(b) Industry Bank should declare its credit with the court accepting the bankruptcy application, submit relevant legal documents to prove its credit and clarify the amount of credit as well as the existence of guarantee on part of the credit. Among its total credit of RMB 20 million yuan, Industry Bank was a general creditor for RMB 8 million yuan.
(c) Merchant Bank was entitled to declare its credit and join the bankruptcy procedure. In accordance with Article 50 of the Enterprise Bankruptcy Law, the joint and several creditors may choose one from among them to declare their creditors’ right or may jointly declare the creditors’ right together. Dalie Co provided guarantee for a loan to Merchant Bank, but the principal,
Jiqing Company, failed to settle the debt. Merchant Bank, as a creditor and guarantee, was entitled to choose Dalie Co to declare its credit.
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