Avoid "taking advantage" of policies when carrying out recovery and bankruptcy procedures

During the group discussion, the National Assembly deputies agreed to comprehensively amend and supplement the 2014 Bankruptcy Law. After more than 10 years of implementation, the 2014 Bankruptcy Law has revealed many "bottlenecks" in resolving bankruptcy cases. While the need to resolve bankruptcy of enterprises and cooperatives is very large, the results of the resolution are not many, and the prolonged resolution time affects the attraction of investment in Vietnam.

t1(1).jpg — Overview of the group discussion session on the morning of October 23

In the spirit of Resolution No. 68 - NQ/TW of the Politburo on private economic development, the draft Bankruptcy Law (amended) was built with many breakthrough contents. Delegates highly appreciated the draft law when it added independent recovery procedures, shortened proceedings and applied electronic platforms to prioritize business recovery instead of just declaring bankruptcy. However, delegates also expressed concerns about some unclear provisions that could lead to policy exploitation.

According to National Assembly Deputy Mai Van Hai ( Thanh Hoa ), Article 20 on Bankruptcy Recovery Costs, the draft law stipulates "bankruptcy costs can be advanced by the State budget". This provision means that in cases where employees or trade unions file lawsuits, or in cases where enterprises and cooperatives do not have funds and no assets, or if they still have assets, they cannot be liquidated to get money to pay for bankruptcy recovery costs, this is guaranteed by the State budget. The delegate said that this is an important content and is also a "bottleneck" in resolving current bankruptcy recovery cases.

National Assembly Deputy Mai Van Hai (Thanh Hoa) speaks

"We see that because there are no costs for bankruptcy, many businesses and cooperatives have gone bankrupt but cannot declare bankruptcy. They want to go bankrupt but cannot do so," the delegate emphasized.

Delegate Mai Van Hai expressed his agreement with the use of the State budget to guarantee bankruptcy in some cases. However, the delegate suggested that in order to avoid policy exploitation, there should also be very strict regulations on the conditions or principles for the State budget to advance bankruptcy costs, otherwise businesses could liquidate assets, leaving a burden on the State budget.

Also according to delegate Mai Van Hai, the regulation on rehabilitation procedures is one of the very important new points that the draft law is building into an independent content separate from bankruptcy. However, the entire Chapter 2 from Article 24 to Article 37, the drafting committee needs to continue to research and review to make the rehabilitation procedures simple and fast to be able to help businesses and cooperatives carry out rehabilitation procedures.

“I propose that the time for accepting and processing applications within 15 days should be studied and shortened, and when processing applications, it must be clearly stated that cases that are eligible for acceptance fall under the jurisdiction of the Regional People's Court. Applications that are not within the jurisdiction or do not meet the conditions for acceptance and processing should be returned, and for eligible applications, the People's Court must be responsible for processing them in accordance with regulations,” emphasized delegate Mai Van Hai.

National Assembly Delegate Phan Thi My Dung ( Tay Ninh ) speaks

Agreeing with the concerns raised by delegate Mai Van Hai, National Assembly delegate Phan Thi My Dung (Tay Ninh) said that the regulations on recovery and recovery procedures still have many shortcomings and need to be reviewed to be consistent with reality. Chapter 2 of the draft law is a completely new chapter on recovery procedures, but there are still overlaps and ambiguities.

The delegate stated that, according to the provisions in this chapter, the same legal event that an enterprise or cooperative falls into a state of insolvency as prescribed will lead to two legal actions: the legal representative of the enterprise, the owner of the enterprise or cooperative has the right to file a request for rehabilitation or bankruptcy procedures; the creditor also has the right to file a bankruptcy petition.

Thus, in cases where enterprises and cooperatives have reached the point of insolvency, they will choose the rehabilitation procedure to prolong the time. According to the provisions of the draft law, all steps to carry out the rehabilitation procedure can last up to 4 years. Thus, for enterprises that deliberately delay, do not have the intention to go bankrupt to completely resolve their debts, they will carry out the rehabilitation procedures. During those 4 years, many other legal developments will occur that we have not foreseen and the risk of causing greater consequences.

Accordingly, delegate Phan Thi My Dung suggested that the rehabilitation procedure should be considered a mandatory prerequisite step of the bankruptcy procedure, meaning that when an enterprise shows signs of insolvency, the entitled entities will be required to file for bankruptcy. Before accepting the bankruptcy petition, the parties must be invited to reconcile and fulfill all conditions for rehabilitation, thus avoiding the situation of taking advantage of the policy.

National Assembly Deputy Bui Manh Khoa (Thanh Hoa) speaks

During the group discussion, some National Assembly deputies from Tay Ninh and Thanh Hoa provinces were concerned about the provisions on the authority to resolve bankruptcy cases in the draft law. The deputies agreed with the provisions assigning authority to the People's Court of the region to resolve. However, the draft law stipulates that the territorial jurisdiction is determined by the National Assembly Standing Committee. The deputies said that the National Assembly Standing Committee should authorize the Chief Justice of the Supreme People's Court to make regulations, to ensure the initiative of the Chief Justice of the Supreme People's Court, including the regulation of territory and the need for changes.

Besides agreeing on the State's mechanism and policies for cooperative enterprises in the recovery period, some delegates expressed concerns about the regulation "Supporting taxes, credit, interest rates, finance, land and other measures for enterprises and cooperatives facing difficulties in business". Delegates said that it is necessary to specify what "difficulties" are in order to have a correct way to determine and avoid taking advantage of policies.

Source: https://daibieunhandan.vn/tranh-truc-loi-chinh-sach-khi-thuc-hien-thu-tuc-phuc-hoi-pha-san-10392621.html