Review of Research Status Related to the Topic

Financial situation analysis in joint stock companies ” by Nguyen Nang Phuc (2003); the article “ Asset valuation of equitized state-owned enterprises: Many shortcomings ” by Dinh Phuong Thao (2010)… It can be seen that studies on asset management in enterprises mainly focus on state-owned enterprises in the equitization process. Asset management in private enterprises has a number of articles on new types of assets such as intellectual property assets, or if related to asset and liability management, it is mentioned but only limited to insurance enterprises. There are a number of articles that address more directly the issue of accounting, management, use and depreciation of fixed assets such as the article “ Discussion on accounting, management, use and depreciation of fixed assets ” by Le Thi Thanh Hai (2013). The article “ Protecting the rights of creditors in the business activities of enterprises ” by author Nguyen Thi Lan Huong (2019) mentioned the philosophy of protecting creditors, according to which, creditors have the right to claim debts from the company and the company has the obligation to repay the debt with its own assets, while the company owner is only responsible for his/her capital contribution. Therefore, the interests of creditors always have priority over those of the company owner. However, in reality, if the security measures are not effective, creditors will face many risks in the process of corporate governance such as in investment decisions, borrowing capital of the enterprise or the possibility of violating the obligations of the representative.

1.1.5. Studies on bankruptcy

As an activity closely related to the bankruptcy procedure, bankruptcy studies in general also mention bankruptcy asset management activities. Some articles such as " Current practice of law enforcement on bankruptcy procedures in Vietnam " by Pham Thi Thuy Linh (2019); " Bankruptcy law: some shortcomings and proposed solutions " by Che Van Trung (2020); " Improving the provisions of the 2014 Bankruptcy Law " by Truong Thi Quynh Tram (2019); " Common logic"

of bankruptcy law and bankruptcy law 2014 " by Nguyen Manh Thang (2018); the article "The concept of bankruptcy, bankruptcy procedures and connections to the Bankruptcy Law 2014" by Duong Kim The Nguyen (2016). Referring to the enforcement of bankruptcy law in general, author Hoai Linh (2013) wrote the article "Bankruptcy law "falls into bankruptcy ", sharing the same opinion with author Bui Minh Tri (2010) who wrote the article " Thinking about the enforcement of bankruptcy law ". The article " Entanglements and shortcomings in the implementation of the Bankruptcy Law 2014 and proposed improvements " by author Nguyen Thi Yen (2018) commented on the difficulties and limitations of the bankruptcy asset management process. Accordingly, the author believes that the management and liquidation of bankruptcy assets by the administrator and the enterprise managing and liquidating assets have not met expectations, and there are many problems occurring in practice that require specific guidance and coordination between relevant parties to ensure effective implementation. The author also assesses that the institution of administrators still has basic limitations such as the issue of appointing administrators, administrators' costs, and difficulties in performing tasks. Pointing out the bottlenecks in the implementation of the 2014 Bankruptcy Law, author Tran Van Phuong (2021) in the article " Enhancing the effectiveness of the application of the Bankruptcy Procedure Law in Quang Tri and solutions for improvement " also shares the same opinion that many regulations are not specific and lack feasibility. For example, regarding the appointment of administrators, the law does not have regulations in cases where administrators refuse to accept bankruptcy cases, and what are the procedures and procedures for refusal. The author emphasizes that it is necessary to add regulations on types of assets, property rights to be recovered, and new assets arising in the course of business after the decision to open bankruptcy proceedings to the list of bankruptcy assets to protect the rights of creditors. It is also necessary for the law to add regulations on bankruptcy asset management procedures such as sealing and seizure procedures to prevent acts of asset dispersion. Issues on asset valuation also need to be strictly regulated at the time of asset inventory.

1.2. Evaluation of research situation related to the topic

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Through the process of surveying and evaluating research works related to bankruptcy asset management abroad and in Vietnam, the author has some preliminary comments and assessments on the research results as follows:

1.2.1. The results inherited in the Thesis

Because bankruptcy asset management is associated with all stages of the bankruptcy process and procedures, to create a theoretical basis for the bankruptcy asset management process, research works in the world and Vietnam were surveyed to allow the author to inherit the following important research perspectives on bankruptcy asset management:

- On the principles and objectives of bankruptcy asset management :

Based on the general bankruptcy law doctrines, although approached from many different angles, these doctrines will govern the principles and objectives of bankruptcy asset management activities. With the nature of a collective debt collection procedure when the correlation of positions between creditors and debtors is driven by strong personal motivations (creditors want to recover debts while debtors may have acts of evading obligations, dispersing assets), bankruptcy asset management activities must ensure fairness, transparency, and maximize the interests of related parties (including the interests of third parties such as employees of the enterprise, asset holders).

- Regarding determining the scope of bankruptcy assets :

The term “Bankruptcy property” inherits the general civil law approach to property, however, for bankruptcy property it will be a special form of property. In essence, bankruptcy property is the property of the debtor at the time of initiating bankruptcy proceedings, therefore, it will have the basic characteristics of civil law. In addition, what is more important to create the characteristics of bankruptcy property is when the property is established as the debtor’s ownership in relation to the time of initiating the bankruptcy procedure.

- Regarding the subject of bankruptcy asset management:

The thesis inherits the viewpoint on the legal status of the subjects participating in the bankruptcy asset management process in general, which is placed in the legal relationship between the Court, the administrator, the debtor and the creditor. Accordingly, bankruptcy asset management is a stage in the process of resolving the consequences of the enterprise falling into bankruptcy, in which each subject participating in this process has certain legal rights and obligations. The legal status of the Administrator/enterprise managing and liquidating bankruptcy assets must ensure independence and high professionalism and will have great powers over the management and handling of the enterprise's assets. Meanwhile, the court in relation to private legal relations, the court only intervenes in case of request, otherwise, the court will let the parties adjust their own interests. For creditors, when a business goes bankrupt, bankruptcy asset management plays an important role for creditors, deciding whether the creditor can recover the debt or not. Therefore, the creditor's position always tends to maximize his own interests and tries to recover the debt in many different ways. For debtors, bankruptcy asset management law is an effective tool to regulate the conflict of interests between creditors and debtors. Bankruptcy law views the debtor as a business entity that is insolvent and needs the support of legal tools so that the insolvency of the debtor does not cause instability to the economy, not as a criminal act that causes damage to the economy. Therefore, the role and position of debtors in bankruptcy asset management activities show that the voluntary and goodwill of debtors in the asset management activities of insolvent enterprises is really necessary, facilitating the bankruptcy asset management activities of enterprises.

- Regarding bankruptcy asset management measures :

The thesis inherits the viewpoints on the orientation and objectives of building asset management measures, which must ensure timeliness, rationality, speed, fairness, transparency and maximize the interests of the parties involved based on the general bankruptcy doctrine. This will be an important theoretical basis for evaluating measures on bankruptcy asset management in positive law.

1.2.2. Issues that the thesis continues to research

The context of globalization and the instability of the world economy in recent years has raised the need to establish common international legal standards on bankruptcy asset management. However, in Vietnam, legal research on bankruptcy asset management and the transformation of theoretical research results in the world into practical law in Vietnam are still quite limited. The process of collecting and summarizing research documents in the world has raised issues for graduate students that need to continue to conduct in-depth research in Vietnam, specifically as follows:

- In the theoretical basis of the law on bankruptcy asset management , the thesis will clarify the concept of bankruptcy assets by clarifying the legal characteristics of bankruptcy assets and building a more complete theoretical framework for specific bankruptcy asset management measures.

- In the section on assessing the current legal status of bankruptcy asset management, based on the theoretical framework summarized in the previous section and analyzing the current legal regulations to provide some practical examples in Vietnam. The thesis based on the comparative legal approach will have an assessment of bankruptcy asset management in some countries in the world to point out the legal adjustment experiences that can be transferred to Vietnam;

- The thesis will focus on some breakthrough and fundamental solutions to improve the law on bankruptcy asset management in Vietnam today.

in the context of international integration and ensuring compatibility with international practices.

1.3. Theoretical basis of the study

1.3.1. Theoretical framework

Bankruptcy asset management is a continuous activity during the bankruptcy process, therefore, bankruptcy asset management activities are also approached based on legal theories related to bankruptcy in general. The article “ Bankruptcy and Insolvency: An Exploration of Relevant Theories” by authors Adegbemi Babatunde Onakoya and Ayooluwa Olotu in 2017 writes about the theories that affect the principles and objectives of bankruptcy law in general and partly affect bankruptcy asset management activities.

Maximisation of Social Welfare :

The social welfare maximization theory argues that when a business goes bankrupt, creditors are often interested in the assets and the increase in the assets of the business to serve the recovery of their debts instead of supporting the business to continue operating. They will try to seize the assets of the business and this may lead to the liquidation of fragmented assets. Therefore, maximizing the benefits of all creditors can only be achieved if the existence of the business continues to be maintained through the regulations and institutions of bankruptcy law. In other words, bankruptcy law will be the legal framework for the transition to a new state of operation of the bankrupt business. The Absolute Priority Rule theory argues that the values of the business will be maximized if the bankruptcy law ensures a fair distribution to creditors. Bankruptcy law must have full respect for the priority of debt collection for different types of creditors. In other words, the principle of absolute priority must be strictly observed. Debts must be paid to creditors in a certain order. Shareholders of the enterprise will be paid last after the priority of debt collection for creditors has been given.

Creditors' Bargain Theory :

Thomas H. Jackson's theory of creditors' bargaining argues that bankruptcy law is essentially a matter of recording agreements (bargains) between creditors and debtors rather than reaching a pure bankruptcy decision. According to the author, with the approach of through agreements between creditors and debtors, the value of the debtor's assets will be optimized, costs will be reduced and the interests of the parties will be secured.

Bankruptcy-policy Theory:

Author Elizabeth Warren's theory of bankruptcy policy argues that bankruptcy law is not simply a collective debt collection procedure, but it also has another duty to protect social values because the impact of corporate bankruptcy not only directly affects the debtor but also affects the economic environment in general. Therefore, bankruptcy law regulations give priority to ensuring the principle of fairness between creditors and protecting the reasonable rights of debtors.

Value-Based Theory:

The theory of bankruptcy law based on the value system of Donald R. Korobkin approaches bankruptcy law from many different perspectives, according to which, bankruptcy law is not simply a debt collection procedure but it also has a higher purpose of resolving the financial crisis of the debtor and ensuring the interests of related entities in a unified whole. The procedures and processes of bankruptcy in general and the procedures on asset management in particular must be designed according to strict principles and limit agreements that are disadvantageous to debtors and weak creditors.

Risk-Sharing Theory:

The risk-sharing theory of Thomas H. Jackson and Robert E. Scott emphasizes the redistribution and reorganization of debtor activities in bankruptcy law. According to this theory, bankruptcy law has a central goal of maximizing the overall value of the debtor and an additional goal that forces all creditors to

Debtors must be aware of “sharing (at least in part) the common risk of business failure”. Therefore, bankruptcy law must aim at the ability of all creditors and debtors to negotiate risk sharing to deal with the risk of insolvency from the debtor.

Theory of freedom of contract:

It can be seen that all transactions, whether civil or commercial, are approached based on the central doctrine of freedom of agreement. This principle was recognized in contract law since ancient Rome and was later adopted by the legal systems of many countries. The basic content of the theory of freedom of agreement is that the parties can agree on anything they want, except for some cases where the law does not allow the parties to freely agree. These cases often arise from the need to balance personal interests and public interests, the interests of the weaker party. This doctrine holds that the law is the expression of the will of individuals in society, so the provisions of the law are essentially common standards that each individual has accepted. Usually, it is considered in three aspects: philosophy, ethics and economics. Freedom of agreement is based on individual freedom, no one can be forced to do or not do a certain job and it always comes from the interests of that individual, and finally freedom of agreement is the driving force behind economic activities.

So in relation to bankruptcy law and more specifically in the process of managing bankruptcy assets, is the freedom of agreement of parties with related rights and interests limited and to what extent? The laws of countries also recognize that in special cases, freedom of agreement will be invalid. Normally, intervention to limit freedom of will is often based on the need to balance personal interests and the interests of the community because people live in a society where the interests of individuals are closely interdependent. Second, it is necessary to protect the weak in society (for example

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