The decision to open bankruptcy proceedings is? Is it necessary to notify the decision to open bankruptcy procedures on the national business registration portal? The article shares in detail the legal regulations surrounding the decision to open bankruptcy procedures according to current legal regulations. 

CSPL: Articles 5, 42, 43 Bankruptcy Law 2014

 1. Persons with the right and obligation to file a request to open bankruptcy procedures

– Persons with the right and obligation to file a request to open bankruptcy procedures according to the provisions of Article 5 of the 2014 Bankruptcy Law stipulate as follows:

+ Unsecured creditors and partially secured creditors have the right to file a request to open bankruptcy procedures at the end of 03 months from the date the debt is due. Enterprises and cooperatives do not fulfill their payment obligations.

+ Employees, grassroots trade unions, and immediate superior grassroots unions in places where grassroots unions have not yet been established have the right to file a request to open bankruptcy proceedings at the end of 03 months from the date of payment obligations, and other debts due to employees that the enterprise or cooperative does not fulfill their payment obligations. accountant.

+ The legal representative of an enterprise or cooperative is obliged to file a request to open bankruptcy proceedings when the enterprise or cooperative becomes insolvent.

+ Owner of a private enterprise, Chairman of the Board of Directors of a joint stock company, Chairman of the Board of Members of a limited liability company with two or more members, owner of a one-member limited liability company, member The partnership of a partnership company is obliged to file a request to open bankruptcy proceedings when the enterprise becomes insolvent.

+ A shareholder or group of shareholders owning 20% ​​or more of common shares for at least 6 consecutive months has the right to file a request to open bankruptcy procedures when the joint stock company becomes insolvent. A shareholder or group of shareholders owning less than 20% of common shares for at least 6 consecutive months has the right to file a request to open bankruptcy proceedings when the joint stock company becomes insolvent in cases where the company’s Charter stipulates.

+ Cooperative members or legal representatives of cooperatives and members of cooperative unions have the right to file a request to open bankruptcy procedures when the cooperative or cooperative union becomes insolvent.

2. Decide to open or not to open bankruptcy procedures

– Within 30 days from the date of accepting the request to open bankruptcy proceedings, the Judge must issue a decision to open or not to open bankruptcy proceedings, except for the cases specified in Article 105 of the 2014 Bankruptcy Law.

– The judge issues a decision to open bankruptcy proceedings when an enterprise or cooperative becomes insolvent.

– In case of necessity, before making a decision to open bankruptcy procedures, the Judge may convene a meeting with the participation of the applicant requesting the opening of bankruptcy procedures, the business owner or legal representative of the enterprise or cooperative requested to open bankruptcy procedures, and relevant individuals and organizations to consider and check the grounds proving the enterprise or cooperative’s insolvency.

– The decision to open bankruptcy procedures must have the following main contents:

+ Day, month, year;

+ Name of the People’s Court; Full name of Judge conducting bankruptcy proceedings;

+ Date and number of acceptance of the request to open bankruptcy procedures; name and address of the person making the request;

+ Name and address of the insolvent enterprise or cooperative;

+ Time and place of declaration by creditors and legal consequences of not declaring.

– The People’s Court shall decide not to open bankruptcy proceedings if it considers that the enterprise or cooperative does not fall into the prescribed cases.

– In this case, the applicant requesting to open bankruptcy proceedings will be refunded the advance payment for bankruptcy costs; Requests for insolvent enterprises and cooperatives to fulfill property obligations that have been temporarily suspended according to the provisions of Article 41 of this Law will continue to be resolved.

– The decision to open or not to open bankruptcy proceedings takes effect from the date of decision.

3. Is the notice of decision to open bankruptcy procedures required to be announced on the national business registration portal?

According to the provisions of Article 43 of the Bankruptcy Law, the provisions on notice of decision to open or not to open bankruptcy procedures are as follows:

Article 43. Notice of decision to open or not to open bankruptcy procedures

1. The People’s Court’s decision to open bankruptcy procedures must be sent to the applicant, the insolvent enterprise or cooperative, the creditor, the People’s Procuracy at the same level, the civil judgment enforcement agency, the tax agency, the business registration authority where the enterprise or cooperative is headquartered and posted on the National Business Registration Portal, the People’s Court’s electronic information portal and 02 consecutive issues of the local newspaper where the enterprise or cooperative is insolvent. headquartered.

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Conclusion: Comparing with the above regulations, the decision to open bankruptcy procedures must be notified of the decision to open bankruptcy procedures posted on the national business registration portal. In addition, it was also posted on the Electronic Information Portal of the People’s Court and 02 consecutive issues of local newspapers.