变价和分配
管理人应当及时拟订破产财产变价方案,提交债权人会议讨论。
管理人应当按照债权人会议通过的或者人民法院依照本法第六十五条第一款规定裁定的破产财产变价方案,适时变价出售破产财产。
变价出售破产财产应当通过拍卖进行。但是,债权人会议另有决议的除外。
破产企业可以全部或者部分变价出售。企业变价出售时,可以将其中的无形资产和其他财产单独变价出售。
按照国家规定不能拍卖或者限制转让的财产,应当按照国家规定的方式处理。
破产财产在优先清偿破产费用和共益债务后,依照下列顺序清偿:
(一)破产人所欠职工的工资和医疗、伤残补助、抚恤费用,所欠的应当划入职工个人账户的基本养老保险、基本医疗保险费用,以及法律、行政法规规定应当支付给职工的补偿金;
(二)破产人欠缴的除前项规定以外的社会保险费用和破产人所欠税款;
(三)普通破产债权。
破产财产不足以清偿同一顺序的清偿要求的,按照比例分配。
破产企业的董事、监事和高级管理人员的工资按照该企业职工的平均工资计算。
破产财产的分配应当以货币分配方式进行。但是,债权人会议另有决议的除外。
管理人应当及时拟订破产财产分配方案,提交债权人会议讨论。
破产财产分配方案应当载明下列事项:
(一)参加破产财产分配的债权人名称或者姓名、住所;
(二)参加破产财产分配的债权额;
(三)可供分配的破产财产数额;
(四)破产财产分配的顺序、比例及数额;
(五)实施破产财产分配的方法。
债权人会议通过破产财产分配方案后,由管理人将该方案提请人民法院裁定认可。
破产财产分配方案经人民法院裁定认可后,由管理人执行。
管理人按照破产财产分配方案实施多次分配的,应当公告本次分配的财产额和债权额。管理人实施最后分配的,应当在公告中指明,并载明本法第一百一十七条第二款规定的事项。
对于附生效条件或者解除条件的债权,管理人应当将其分配额提存。
管理人依照前款规定提存的分配额,在最后分配公告日,生效条件未成就或者解除条件成就的,应当分配给其他债权人;在最后分配公告日,生效条件成就或者解除条件未成就的,应当交付给债权人。
债权人未受领的破产财产分配额,管理人应当提存。债权人自最后分配公告之日起满二个月仍不领取的,视为放弃受领分配的权利,管理人或者人民法院应当将提存的分配额分配给其他债权人。
破产财产分配时,对于诉讼或者仲裁未决的债权,管理人应当将其分配额提存。自破产程序终结之日起满二年仍不能受领分配的,人民法院应当将提存的分配额分配给其他债权人。
|
|
CONVERSION AND
DISTRIBUTION
The bankruptcy
custodian shall
draft a
conversion plan
of insolvent
assets and
submit it to the
creditor's
meeting for
discussion.
The bankruptcy
custodian shall,
in light of the
conversion plan
of insolvent
assets that has
been adopted at
the creditor's
meeting or that
has been ruled
by the people's
court in
accordance with
the provisions
of paragraph 1
Article 65 of
the present Law,
sell the
insolvent assets
by means of
conversion at a
proper time.
The sale of
insolvent assets
by means of
conversion shall
be conducted
through auction,
unless there is
any other
resolution at
the meeting of
creditors.
An insolvent
enterprise may
be wholly or
partially sold
by means of
conversion.
Where an
enterprise is
sold by means of
conversion, the
intangible
assets and other
assets thereof
may be solely
sold by means of
conversion.
As to the
assets that
shall not be
auctioned or
whose transfer
is restricted,
it shall be
handled through
the method as
prescribed by
the state.
The insolvent
assets shall,
after the costs
for bankruptcy
liquidation and
community
liabilities are
repaid in
priority, be
liquidated in
light of the
following
sequence:
(1) The wages
and subsidies
for medial
treatment and
disability,
comfort and
compensatory
expenses as
defaulted by the
bankruptcy, the
fundamental
old-age
insurance
premiums,
fundamental
medical
insurance
premiums that
shall have been
transferred to
the employees'
personal account
as well as the
compensation
fees for
employees as
prescribed by
the relevant
laws and
administrative
regulations;
(2) The social
insurance
premiums other
than those as
prescribed in
the aforesaid
provisions and
tax fees as
defaulted by the
bankruptcy; and
(3) The common
credits of
bankruptcy.
Where the
insolvent assets
are not enough
to meet the
requirements for
liquidation in a
same sequence,
it shall be
distributed in
light of the
proportion.
The wages of
the directors,
supervisors as
well as senior
managers of an
insolvent
enterprise shall
be calculated in
light of the
average wage of
employees.
The insolvent
assets shall be
subject to
monetary
distribution,
unless it is
separately
decided at the
meeting of
creditors.
A bankruptcy
custodian shall
formulate a
distribution
plan of
insolvent assets
in a timely
manner, and
submit it to the
creditor's
meeting for
discussion:
In the
distribution
plan of
insolvent
assets, the
following
matters shall be
indicated:
(1) Names and
domiciles of the
creditors
attending the
distribution of
insolvent
assets;
(2) The amount
of the
creditor's
rights that is
involved in the
distribution of
insolvent
assets;
(3) The amount
of insolvent
assets as ready
for
distribution;
(4) The
sequence,
proportion and
amount of
insolvent assets
subjected to
distribution;
and
(5) The
measures for
distributing the
insolvent
assets.
After a
distribution
plan of
insolvent assets
is adopted at
the meeting of
creditors, the
relevant
bankruptcy
custodian shall
submit the plan
to the people's
court for an
approval ruling.
The
distribution
plan of
insolvent assets
shall, upon the
approval of the
people's court,
be executed by
the relevant
bankruptcy
custodian.
Where a
bankruptcy
custodian
implements a
distribution in
installments in
light of the
distribution
plan of
insolvent
assets, it shall
announce the
amount of assets
and the
creditor's
rights in the
distribution.
Where the
bankruptcy
custodian
implements a
conclusive
distribution in
a lump sum, it
shall be
indicated in the
announcement,
wherein the
matters as
prescribed in
paragraph 2,
Article 117 of
the present law
shall be
indicated as
well.
As to any
creditor's right
subject to the
requirement for
effectiveness or
unchain, the
bankruptcy
custodian shall
deposit the
distribution
share.
As to the
distribution
share as
deposited by the
bankruptcy
custodian in the
preceding
paragraph, on
the announcement
day of the
conclusive
distribution,
where the
requirement for
effectiveness is
not satisfied or
the requirement
for rescission
is satisfied, it
shall be
distributed to
other creditors;
on the
announcement day
of the
conclusive
distribution,
where the
requirement for
effectiveness is
satisfied or the
requirement for
rescission is
not satisfied,
it shall be
delivered to the
creditors.
The
distribution
shares of
insolvent assets
that have not
been collected
by creditors
shall be
deposited by the
relevant
bankruptcy
custodian. Where
a creditor fails
to collect its
share within 2
months as of the
last day of
distribution
announcement, it
shall be deemed
as waiver of the
right to collect
the distribution
share. The
bankruptcy
custodian or the
people's court
shall distribute
the deposited
distribution
share to other
creditors.
When
distributing the
insolvent
assets, as to
any creditor's
right that has
not been settled
by action or
arbitration, the
bankruptcy
custodian shall
deposit the
distribution
share. Where any
distribution
share fails to
be collected
within 2 years
as of the day
when the
procedures for
bankruptcy are
terminated, the
people's court
shall distribute
the deposit
distribution
share to other
creditors.
|