Decree No. 114/2008/ND-CP dated November 3, 2008 of the Government detailing the implementation of a number of articles of the bankruptcy law applicable to enterprises engaged in insurance, securities and other financial business activities

DECREE

DETAILING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE BANKRUPTCY LAW APPLICABLE TO ENTERPRISES ENGAGED IN INSURANCE, SECURITIES AND OTHER FINANCIAL BUSINESS ACTIVITIES

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the June 24, 2004 Bankruptcy Law;

Pursuant to the December 9, 2000 Law on Insurance Business;

Pursuant to the June 29, 2006 Securities Law;

At the proposal of the Minister of Finance,

DECREES:

Chapter I.

GENERAL PROVISIONS

Article 1. Governing scope and subjects of application

1. This Decree:

a. Provides a list of enterprises engaged in insurance, securities and other financial business activities to which this Decree’s provisions on bankruptcy apply.

b. Guides the application of a number of provisions of the Bankruptcy Law to enterprises engaged in insurance, securities and other financial business activities.

Other bankruptcy-related matters concerning enterprises engaged in insurance, securities and other financial business activities comply with the Bankruptcy Law and guiding documents.

2. This Decree applies to:

a. Enterprises established and making business registration under law and being on the list specified in Article 2 of this Decree.

b. Organizations and individuals involved in the settlement of requests for bankruptcy of enterprises engaged in insurance, securities and other financial business activities.

Article 2. List of enterprises engaged in insurance, securities and other financial business activities

1. In the insurance domain: insurance business enterprises established and operating in Vietnam under the Law on Insurance Business (below referred to as insurance enterprises), excluding insurance brokerage companies.

2. In the securities domain: securities companies, securities investment fund management companies and securities investment companies established and operating in Vietnam under the Securities Law (below referred to as securities enterprises).

3. In other financial domains: construction lottery companies engaged in lottery business activities under the Government’s Decree No. 30/2007/ND-CP of March 1, 2007, on lottery business.

In case enterprises of new models are established and operate under the Finance Ministry’s licenses or decisions or operate under the Finance Ministry’s state management in order to directly provide financial services and the bankruptcy of these enterprises would greatly affect the public or directly impact the safe and stable development of the financial system, the Minister of Finance shall publicize an additional list of enterprises engaged in other financial business activities to which this Decree will apply (below referred to as other financial enterprises) after obtaining the Prime Minister’s approval.

Article 3. Bankruptcy procedures

1. In case insurance, securities or other financial enterprises falling into bankruptcy are not entitled to the application of measures to restore solvency, bankruptcy procedures applicable to them cover:

a. Submission of a written request for and opening of bankruptcy procedures;

b. Resumption of business activities;

c. Liquidation of assets and debts;

d. Declaration of enterprise bankruptcy.

2. In case measures to restore solvency have been applied but fail and the enterprise is still unable to pay due debts at the request of creditors, and the Ministry of Finance, the State Securities Commission or the enterprise owner decides to terminate the application of these measures and, at the same time, only half or fewer of creditors with unsecured debts that represent less than 2/3 (two-thirds) of total unsecured debts request the organization of a creditors’ conference, the judge shall decide to immediately liquidate assets and debts of the enterprise under Point c of Clause 1 and declare its bankruptcy without applying procedures for restoring business activities under Point b, Clause 1 of this Article.

Article 4. Asset management and liquidation teams

1. Simultaneously with the issuance of a decision to open bankruptcy procedures, the judge in charge of bankruptcy of insurance, securities and other financial enterprises shall issue a decision to set up an asset management and liquidation team to manage and liquidate assets of an enterprise falling into bankruptcy.

2. An asset management and liquidation team is composed of:

a. Its head being an executor of the judgment enforcement body of the same level with the court competent to process written requests for opening of bankruptcy procedures;

b. An official of the people’s court competent to process written requests for opening of bankruptcy procedures;

c. A representative of creditors that is an organization or individual having the biggest debt among the creditors. When the creditors’ conference finds it necessary to replace the creditors’ representative in the asset management and liquidation team, it shall elect another person in replacement of that representative;

d. A lawful representative of the enterprise for which bankruptcy procedures are opened;

e. A representative of the Ministry of Finance, in case of bankruptcy of an insurance or another financial enterprise to which the Ministry of Finance has granted a license or issued a decision on its establishment and operation, or of the State Securities Commission, in case of bankruptcy of a securities enterprise, or of the enterprise owner, in case of bankruptcy of another financial enterprise to which an agency other than the Ministry of Finance has granted a license or issued a decision on its establishment and operation;

f. A trade union representative or a representative of laborers (in case trade unions are unavailable), for an enterprise owing salary or other debts to laborers.

3. Agencies and organizations defined in Clause 2 of this Article shall appoint their representatives to join asset management and liquidation teams at the request of the judge.

4. The setting up, member replacement, dissolution or re-setting up of asset management and liquidation teams comply with Articles 16 thru 19 of the Government’s Decree No. 67/2006/ND-CP of July 11, 2006, guiding the application of the Bankruptcy Law to special enterprises and the organization and operation of asset management and liquidation teams.

Article 5. Tasks, powers and working regimes of asset management and liquidation teams

1. Asset management and liquidation teams shall perform the tasks and exercise the powers defined in Articles 10 and 11 of the Bankruptcy Law.

2. Asset management and liquidation teams shall work under Article 20 and Articles 22 thru 33 of the Government’s Decree No. 67/2006/ND-CP of July 11, 2006, guiding the application of the Bankruptcy Law to special enterprises and the organization and operation of asset management and liquidation teams.

Chapter II.

SUBMISSION AND PROCESSING OF WRITTEN REQUESTS FOR OPENING OF BANKRUPTCY PROCEDURES

Article 6. Persons having rights and obligations to submit written request for opening of bankruptcy procedures

1. Persons having rights to submit written request for opening of open bankruptcy procedures for insurance, securities and other financial enterprises are specified in Articles 13 thru 18 of the Bankruptcy Law.

2. While performing their functions and tasks, if discovering that insurance, securities and other financial enterprises fall into bankruptcy, the Ministry of Finance, the State Securities Commission and concerned agencies defined in Article 20 of the Bankruptcy Law shall notify such in writing to persons defined in Clause 1 of this Article for consideration of the submission of written requests for opening of bankruptcy procedures, and shall take responsibility for the accuracy of their notices.

3. Persons submitting written requests for opening of bankruptcy procedures defined in Clause 1 of this Article have the obligations and responsibilities defined in Article 19 of the Bankruptcy Law.

Article 7. Notification of the processing of written requests for opening of bankruptcy procedures

1. In case the request submitter is the owner or lawful representative of the enterprise, within five (05) days after receiving the request, the court shall notify it to the following agencies:

a. The Ministry of Finance, for a written request for opening of bankruptcy procedures for an insurance or another financial enterprise to which the Ministry of Finance has granted a license or issued a decision on its establishment and operation.

b. The State Securities Commission, for a written request for opening of bankruptcy procedures for a securities enterprise.

2. In case the request submitter is other than the owner or lawful representative of the enterprise falling into bankruptcy, within five (05) days after receiving the request, the court shall notify it to the enterprise and, at the same time, send the request to the following agencies and organizations:

a. The Ministry of Finance, for a written request for opening of bankruptcy procedures for an insurance or another financial enterprise to which the Ministry of Finance has granted a license or issued a decision on its establishment and operation.

b. The State Securities Commission, for a written request for opening of bankruptcy procedures for a securities enterprise.

c. The enterprise owner, for a written request for opening of bankruptcy procedures for another financial enterprise to which an agency other than the Ministry of Finance has granted a license or issued a decision on its establishment and operation.

Article 8. Responsibilities of enterprises and state management agencies for the application of measures to restore solvency

1. If identifying the danger of insolvency, before deciding to submit written requests for opening of bankruptcy procedures, insurance, securities or other financial enterprises shall take the initiative in taking measures to restore their solvency by themselves and consolidate their organization and operation and, at the same time, report in writing to state management agencies and owners on the actual financial conditions, causes of the danger of insolvency and plans to restore solvency according to law.

2. Within five (05) days after receiving the court’s notices of the availability of written requests for opening of bankruptcy procedures from persons other than owners or lawful representatives of enterprises, insurance, securities or other financial enterprises concerned shall report in writing to their state management agencies or owners on their actual financial status, causes of the danger of insolvency and plans to restore solvency according to law.

3. Within fifteen (15) days after receiving the court’s notices of the availability of written requests for opening of bankruptcy procedures for insurance, securities or other financial enterprises, state management agencies or owners defined in Article 7 of this Decree shall notify in writing the application, non-application or termination of application of measures to restore the enterprises’ solvency.

Article 9. Powers of state management agencies and owners to request enterprises to take measures to restore their solvency

1. For insurance enterprises in danger of insolvency, the Ministry of Finance may request them to restore their solvency through the following measures:

a. Supplementing the owner capital;

b. Providing re-insurance; narrowing contents, scope and areas of operation; suspending some or all of activities;

c. Reorganizing organizational structures and replacing executives or managers of enterprises;

d. Requesting the transfer of insurance policies;

e. Other measures provided for by law.

Insurance enterprises which fail to restore solvency at the request of the Ministry of Finance shall be placed under the solvency control. The Ministry of Finance shall decide to set up a solvency control board to apply measures to restore solvency under Article 80 of the Law on Insurance Business and relevant guiding documents.

2. For securities enterprises in danger of insolvency, the State Securities Commission may:

a. Request securities enterprises to hand over their rights and obligations towards funds, entrusting investors and investors that open securities trading accounts at their enterprises to other enterprises. The selection of partners to be handed over rights and obligations shall be agreed upon by enterprises themselves and approved by the State Securities Commission. If enterprises fail to reach agreement by themselves on partners for the handover, the State Securities Commission shall designate enterprises of the same business lines as such partners.

b. Request securities enterprises to temporarily seal up some or all of clients’ monetary accounts and securities accounts and their dealing accounts in order to apply measures to restore solvency.

c. Place securities enterprises in the state of warning under Article 74 of the Securities Law and relevant guiding documents.

d. Apply other measures provided for by law.

3. For other financial enterprises in danger of insolvency, the Ministry of Finance (for enterprises to which the Ministry of Finance has granted licenses or issued decisions on their establishment and operation) or owners (for enterprises to which agencies other than the Ministry of Finance have granted licenses or issued decisions on their establishment and operation) may request enterprises to restore their solvency through the following measures:

a. Narrowing contents, scope and areas of operation; suspending some or all of activities;

b. Reorganizing organizational structures and replacing executives or managers of enterprises;

c. Other measures provided for by law.

4. In case securities and other financial enterprises are not entitled to apply measures to restore solvency, the State Securities Commission, the Ministry of Finance or owners shall notify the courts of the non-application of these measures to these enterprises for the latter to settle the cases according to bankruptcy procedures under Clause 1, Article 3 of this Decree.

Article 10. Return of written requests for opening of bankruptcy procedures

The court shall issue a decision to return a written request for opening of bankruptcy procedures for an insurance, securities or another financial enterprise in the following cases:

1. The request submitter fails to pay an advance of bankruptcy charge within the time limit prescribed by the court;

2. The request submitter has no right to submit such a request;

3. Another court has opened bankruptcy procedures for the enterprise as it has fallen into bankruptcy;

4. There is an explicit ground to believe that the submission of the written request for opening of bankruptcy procedures is not objective, affecting the honor, prestige or business activities of the enterprise or that the request for opening of bankruptcy procedures is deceitful;

5. The enterprise is able to prove that it does not fall into bankruptcy;

6. The enterprise has been notified by a state management agency or its owner defined in Article 7 of this Decree of the application of measures to restore solvency.

Article 11. Decision to open or not to open bankruptcy procedures

1. The court shall issue a decision to open bankruptcy procedures when the following conditions are fully met:

a. The state management agency or owner defined in Article 7 of this Decree has notified in writing the non-application or termination of application of measures to restore solvency of the insurance, securities or other financial enterprise;

b. The insurance, securities or other financial enterprise remains insolvent.

2. A decision to open bankruptcy procedures must contain the details specified in Clause 3, Article 28 of the Bankruptcy Law.

3. The court shall issue a decision not to open bankruptcy procedures when the conditions specified in Clause 1 of this Article are not fully met. The lodging of complaints about the decision not to open bankruptcy procedures complies with Article 32 of the Bankruptcy Law.

Article 12.  Business activities of insurance, securities and other financial enterprises after the issuance of decisions to open bankruptcy procedures

1. All business activities of insurance, securities and other financial enterprises after the issuance of decisions to open bankruptcy procedures shall still be conducted as normal but are subject to supervision and inspection by the judges and asset management and liquidation teams, except the cases specified in Clauses 3 and 4 of this Article.

2. If deeming that managers of insurance, securities or other financial enterprises are incapable of running enterprises or that their continued running of enterprises will badly affect the preservation of the enterprises’ assets, the judge shall, at the proposal of the creditors’ conference, issue a decision to appoint other persons to manage and run business activities of these enterprises.

3. After receiving decisions to open bankruptcy procedures, insurance, securities or other financial enterprises are prohibited from:

a. Hiding or dispersing assets;

b. Paying unsecured debts;

c. Waiving or reducing the right to claim debts;

d. Converting unsecured debts into debts secured with enterprises’ assets;

e. Paying debts to creditors that are also debtors of enterprises;

f. Undertaking to open securities trading accounts for clients or carrying out securities brokerage activities;

g. Carrying out investment activities and other activities related to their clients’ and their own monetary accounts and securities accounts.

4. After receiving a decision to open bankruptcy procedures, before being carried out, the following activities of insurance, securities and other financial enterprises are subject to written approval of the judge:

a. Pledging, mortgaging, transferring, selling, donating or leasing assets;

b. Receiving assets from a transfer contract;

c. Terminating the performance of contracts which have become effective;

d. Borrowing capital;

e. Selling or transforming shares or transferring asset ownership;

f. Paying debts newly arising from enterprises’ business activities and paying wages to enterprises’ laborers.

Chapter III.

ASSET-RELATED OBLIGATIONS AND MEASURES TO PRESERVE ASSETS

Article 13. Determination of asset-related obligations, handling of debts, and return of assets to the State

The determination of asset-related obligations, handling of undue debts or debts guaranteed with mortgaged or pledged assets, and return of assets to the State comply with Articles 33 thru 36 of the Bankruptcy Law.

Article 14. Order of distributing assets

After the fulfillment of asset-related obligations under Article 13 of this Decree, the value of assets of insurance, securities and other financial enterprises shall be distributed in the order specified in Article 37 of the Bankruptcy Law.

Article 15. Transactions regarded as invalid

1. Transactions regarded as invalid are specified in Article 43 of the Bankruptcy Law, except the case specified in Clause 2 of this Article.

2. If, within three months before the court processes written requests for opening of bankruptcy procedures, insurance, securities and other financial enterprises apply measures to restore solvency, the payment of undue debts, mortgage or pledge of assets for debts, payment of deposits on clients’ securities accounts, clearing and payment of securities transactions are not subject to regulations on invalid transactions.

3. Unsecured creditors and asset management and liquidation teams may request the court to declare transactions to be invalid under Article 44 of the Bankruptcy Law.

Chapter IV.

CREDITORS’ CONFERENCE

Article 16. Creditors’ conference

1. Except the case specified in Article 78 of the Bankruptcy Law, the judge shall decide to convene a creditors’ conference to consider the application of measures to restore business activities when state management agencies or owners defined in Article 7 of this Decree have notified in writing the non-application or termination of application of measures to restore solvency.

2. Contents related to the creditors’ conference comply with Articles 61 thru 77 of the Bankruptcy Law.

Chapter V.

ASSET LIQUIDATION PROCEDURES

Article 17. Decision to open asset liquidation procedures

The court and the judge shall issue a decision to open asset liquidation procedures for insurance, securities or other financial enterprises under Articles 78 thru 80 of the Bankruptcy Law.

Article 18. Asset liquidation

1. Assets of bankrupt insurance, securities or other financial enterprises shall be liquidated by the mode and in the order of priority below:

a. Auctioning the whole enterprise to entities engaged in the same business lines or domains in order to continue its business operations;

b. Auctioning the whole enterprise to other entities in case no entity engaged in the same business lines or domains participates in the auction for acquiring the enterprise in order to continue its business operations;

c. Directly selling the whole enterprise to an entity engaged in the same business lines or domains in order to continue its business operations in case only one entity registers to acquire the enterprise;

d. Auctioning each separate asset in case of failure to auction the whole enterprise;

e. Directly selling each separate asset in case of failure to auction each separate asset or when the value of assets is smaller than the level subject to auction under law.

2. The sale of the whole of a state-owned enterprise, auction of a state company and auction of assets comply with law.

Chapter VI.

HANDLING OF VIOLATIONS AND IMPLEMENTATION PROVISIONS

Article 19. Handling of violations

The handling of violations in the process of carrying out bankruptcy procedures complies with Article 93 of the Bankruptcy Law and guiding documents.

Article 20. Effect

1. This Decree takes effect 15 days after its publication in "CONG BAO."

2. Ministers, heads of ministerial-level agencies, heads of government-attached agencies and presidents of provincial-level People’s Committees shall implement this Decree.