ACADEMY
VIETNAMESE SOCIAL SCIENCES
Academy of Social Sciences
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PHAM THI HUE
PROCEDURES FOR LIQUIDATION OF BANKRUPTCY ASSETS UNDER CURRENT VIETNAMESE LAW
MASTER'S THESIS IN LAW
ACADEMY
VIETNAMESE SOCIAL SCIENCES
Academy of Social Sciences
PHAM THI HUE
PROCEDURES FOR LIQUIDATION OF BANKRUPTCY ASSETS UNDER CURRENT VIETNAMESE LAW
Major: Economic Law Code: 60.38.01.07
MASTER'S THESIS IN LAW
SCIENTIFIC INSTRUCTOR ASSOCIATE PROFESSOR, DR. BUI NGUYEN KHANH
COMMITMENT
I hereby declare that this is my own research work. The data and research results presented in this thesis are true and I am responsible for all such data and research results. This thesis has never been published in any other work.
Hanoi, March 22, 2017
Pham Thi Hue
ACKNOWLEDGEMENTS
To complete this thesis, first of all, I would like to express my sincere thanks to the Board of Directors of the Academy of Social Sciences, the Faculty of Law and the teachers in the Academy of Social Sciences for their enthusiastic guidance, help, and imparting of new knowledge about the field of Law and creating favorable conditions for me throughout my study and scientific research at the Academy.
In particular, I would like to express my deepest gratitude to Associate Professor, Dr. Bui Nguyen Khanh , a sincere and responsible teacher who guided me with all the enthusiasm of a teacher throughout the process of researching and writing my thesis.
I would like to sincerely thank my workplace, colleagues, friends, relatives and family for creating favorable conditions to help me throughout the process of researching and completing this thesis.
Hanoi, March 22, 2017
Pham Thi Hue
INDEX
INTRODUCTION 1
CHAPTER 1 SOME BASIC THEORETICAL ISSUES ON BANKRUPTCY AND PROCEDURES FOR LIQUIDATION OF BANKRUPTCY ASSETS 9
1.1. Concept of bankruptcy, insolvency, bankruptcy procedures 9
1.2. Overview of the formation and development of regulations on bankruptcy liquidation procedures in Vietnam 18
1.3. Relationship between asset liquidation procedures and other procedures in bankruptcy settlement 22
CHAPTER 2 LEGAL STATUS ON PROCEDURES FOR LIQUIDATION OF BANKRUPTCY ASSETS 27
2.1. Current status of legal regulations on liquidation of bankrupt enterprises and cooperatives 27
2.2. Current status of legal regulations on liquidation of bankrupt assets for credit institutions 40
2.3. Administrator, Asset Management and Liquidation Enterprise 43
2.4. Current status of implementation of legal provisions on liquidation of bankruptcy assets 56
2.5. Limitations and shortcomings related to liquidation of bankruptcy assets 62
CHAPTER 3 DIRECTIONS AND SOLUTIONS TO IMPROVE THE LAW ON LIQUIDATION OF BANKRUPTCY ASSETS 70
3.1. Directions for perfecting legal regulations on liquidation of bankruptcy assets 70
3.2. Specific solutions to improve the law on liquidation of bankruptcy assets 72
CONCLUSION 80
REFERENCES 83
LIST OF ABBREVIATIONS
DNQLTLTS: Enterprise managing and liquidating assets D. : Article (used in citing documents)
Cooperative: Cooperative
k. : Clause (used in citing documents)
LPS : Bankruptcy Law
LTHADS: Law on Civil Judgment Enforcement
Decree: Decree
NQ: Resolution
OECD : Organization for Economic Cooperation and Development
TCTD: Credit institution
INTRODUCTION
1. Urgency of the topic
Bankruptcy is a common phenomenon, an inevitable consequence of the competition process between business entities in a market economy. It is a product of the natural competition, selection and elimination process of a market economy, regardless of whether it is a developed market economy in countries around the world or a socialist-oriented market economy in Vietnam. When unable to compete, business entities will cease operations through dissolution or bankruptcy procedures, resulting in certain socio-economic consequences, affecting not only the enterprise itself, the employees in the enterprise but also greatly affecting other entities such as creditors, partners, and other members in the economy depending on the model of that enterprise. Resolving the consequences of that situation is the task of any country. The State intervenes with appropriate legal regulations to ensure a healthy business environment for business entities, creating conditions for loss-making enterprises or those unable to pay to recover their business operations or withdraw from the market legally, maximizing the recovery of assets for creditors, and at the same time creating practical opportunities for maintaining or reorganizing business operations.
The 2004 Bankruptcy Law marked an important step forward in protecting the socialist regime, strengthening socialist legality, and protecting the legitimate interests of the state and enterprises. In particular, the regulations on management and handling of bankrupt assets have been fundamentally amended and supplemented to overcome the limitations of the 1993 Enterprise Bankruptcy Law and selectively absorb the bankruptcy laws of a number of countries in the world. However, according to the summary of the implementation of the 2004 Bankruptcy Law, it is seen that the Law has revealed limitations and negative impacts on promoting business development.
of enterprises and cooperatives. There are provisions of the Bankruptcy Law 2004 that are not compatible with other legal documents, and there are provisions that are no longer suitable for socio-economic conditions, leading to low efficiency in applying the provisions of the Bankruptcy Law in practice, causing difficulties and obstacles for enterprises when they want to withdraw from the market in an orderly and legal manner.
On the other hand, after the LPS 2004 was issued, on May 24, 2005, the Politburo issued Resolution No. 48-NQ/TW on the Strategy for building and perfecting the Vietnamese legal system until 2010, with a vision to 2020, including contents on building and perfecting laws on ownership and freedom of business. Implementing the spirit of Resolution 48/NQ-TW and stemming from the limitations and shortcomings of the 2004 Bankruptcy Law, on June 19, 2014, the National Assembly passed the 2014 Bankruptcy Law. This Law takes effect from January 1, 2015, replacing the 2004 Bankruptcy Law. Accordingly, the 2014 Bankruptcy Law consists of 14 chapters and 133 articles. Compared to the 2004 Bankruptcy Law, the 2014 Bankruptcy Law has many contents, including the following 2 important new points related to the liquidation of bankruptcy assets:
Firstly , the Bankruptcy Law 2014 has removed the regulation of the Asset Management and Liquidation Team of bankrupt enterprises and cooperatives, and instead, the Law has added regulations on the activities of the Administrator and the Asset Management and Liquidation Enterprise. Thus, the Bankruptcy Law 2014 has opened a new profession, which is the profession of managing and liquidating bankrupt assets of the Administrator and the Asset Management and Liquidation Enterprise.
Second , the bankruptcy procedure under the 2014 Bankruptcy Law has changed compared to the 2004 Bankruptcy Law, according to which the Court's declaration of bankruptcy is carried out before the asset liquidation procedure. That is, after the Court issues a decision declaring bankruptcy, the civil enforcement agency will issue a Decision on enforcement and the Enforcement Officer will issue a document requesting the Administrator, the asset management and liquidation enterprise to carry out the asset liquidation.