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10 General Contractor entered into a supply contract with Material Co to buy various construction materials at a total price of RMB 20 million yuan. Under the contract, Material Co would provide the first shipment of construction materials, worth RMB 6 million yuan, within 10 days after the conclusion of the contract and General Contractor would make the first payment in 90 days after receipt of the materials. To secure the payment by General Contractor, Huadong
Holdings Co issued a letter of guarantee to provide a guarantee of RMB 6 million yuan in favour of Materials Co. Five days after the conclusion of the contract, Material Co delivered the first shipment to General Contractor.
Due to a dramatic increase of various costs, General Contractor was unable to settle the debts owed to its suppliers or sub-constructors and was declared bankrupt by its creditors. The court confirmed the application of bankruptcy and designated a bankruptcy administrator. Materials Co did not know about the bankruptcy of General Contractor and did not declare its credit because it was located in another province.
Having known the information about General Contractor’s bankruptcy, Huadong Holdings Co came to declare its credit as a guarantor for the preliminary payment. The bankruptcy administrator held that Huadong Holdings Co was not a qualified creditor as it had not borne its guarantor’s obligation and refused to accept the declaration of credit by Huadong Holdings Co.
Required:
Answer the following questions in accordance with the Enterprise Bankruptcy Law, and give your reasons for your answers:
(a) discuss whether Huadong Holdings Co should be a qualified creditor of the debtor given that it had not borne its guarantor’s obligation;
(b) discuss whether Huadong Holdings Co was entitled to declare its credit if Materials Co came to declare its credit of RMB 6 million yuan against General Contractor.
答案：
10 This question requires candidates to deal with the legal issue of the declaration of credits during the process of liquidation under the Enterprise Bankruptcy Law.
(a) Huadong Holdings Co should be a qualified creditor and was entitled to declare its credit even though it had not yet borne the guarantor’s obligation. In accordance with Article 51 of the Enterprise Bankruptcy Law, where the guarantor of a debtor or any other related joint and several debtor has not yet cleared the liabilities on behalf of the debtor, it may declare its creditor’s right on the basis of its future right to recourse against the debtor.
Although Huadong Holdings Co had not borne its mortgagor’s obligation, this obligation still existed. Where Materials Co came to request Huadong Holdings Co to discharge its obligation, it had to pay the price under the guarantee agreement.
(b) In accordance with Article 51 of the Enterprise Bankruptcy Law, where the main creditor – Materials Co – has declared all the creditor’s rights to the bankruptcy administrator, Huadong Holdings Co cannot declare credit during the process of liquidation, since General Contractor owed an amount of RMB 6 million yuan to Materials Co and this debt was guaranteed by Huadong Holdings Co. Where General Contractor failed to pay the price, Materials Co might have an alternative to claim its credit against Huadong Holdings Co or General Contractor. Once Materials Co has chosen to declare its credit to the bankruptcy administrator, it cannot request Huadong Holdings Co to bear its guarantor’s obligation. Under such a circumstance Huadong Holdings Co would not bear any guarantor’s obligation in the future, therefore, it is not a qualified creditor against the debtor.
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