(This guidance in 2019 Nian 10 Yue 30 Shanghai Municipal Lawyers Association Business Research Steering Committee through voting by communication, one-year trial. In case of any proposed changes, during the trial , please click here to feedback )
Chapter I General Provisions
Article 1 [Purpose of formulation] In order to further give full play to the positive role of the reorganization system in improving the rescue mechanism of socialist market economy entities , provide guidance and reference for lawyers in the city's reorganization cases in drafting the reorganization plan, and guide the reorganization The preparation of the draft plan complies with the principles of lawfulness, fairness, and justice, and protects the legitimate rights and interests of all interested parties involved in the reorganization case . These guidelines are hereby formulated.
These guidelines are organized and drafted by the Bankruptcy and Non-Performing Asset Business Research Committee of the Shanghai Bar Association, and are only for reference by lawyers in the Shanghai area when handling draft reorganization plans.
Article 2 [Formulation Basis] These guidelines are based on the "Enterprise Bankruptcy Law of the People's Republic of China" (hereinafter referred to as "Enterprise Bankruptcy Law") , " Minutes of Working Forum on Trial of Bankruptcy and Reorganization Cases of Listed Companies ", and "National Court Bankruptcy "Minutes of Trial Work Meetings" (hereinafter referred to as "Minutes of Meetings") and other relevant documents were formulated.
Di San bar to the debtor concept] This guidance refers to "debtor" means because they can not repay debts due and assets are insufficient to pay off all the debts ; or unable to repay the debt and the apparent lack of liquidity, or obvious insolvency Possibly, an enterprise legal person entering the reorganization procedure in accordance with the relevant provisions of the Enterprise Bankruptcy Law .
Di Si bar to managers within the meaning of the concept of this guidance] "pipe manage people " , is refers to the case accepted by the court based on "Bankruptcy Law" and "on the bankruptcy case to require the administrator of the enterprises designated" the relevant provisions , in case of reorganization The administrator specified in .
Article 5 [ Concept of the draft reorganization plan ] The “draft reorganization plan” referred to in these guidelines refers to the draft made by the debtor or administrator in accordance with the actual situation of the entire case in accordance with the relevant provisions of the Enterprise Bankruptcy Law and the Meeting Minutes The documents including the contents of Article 81 of the Enterprise Bankruptcy Law.
Chapter 2 Principles of Draft Reorganization Plan
Article 6 [ Principle of Balance of Interests] The draft reorganization plan aims to rationally arrange the distribution of reorganization benefits by all interested parties, balance the legitimate rights and interests of the participants in the reorganization process, assist the debtor in regaining profitability, avoid the debtor’s bankruptcy and liquidation, and improve Reorganization success rate.
Article 7 [Principle of Legality] The procedures and content of the draft reorganization plan must be legal and must not violate the relevant provisions of laws, regulations and departmental rules.
Article 8 [Principle of Fairness and Justice] The draft reorganization plan must adhere to the principle of fairness and justice, treat rights holders of the same nature equally, and shall not be treated biased. Creditors in the same voting group must obtain the same proportion of repayment.
Article 9 [Principle of Absolute Priority] The draft reorganization plan must adhere to the principle of absolute priority. Before the creditors in the first order are paid in full, in principle, the creditors in the lower order shall not be repaid; before the creditors are paid in full , In principle, the investor no longer has any rights to the debtor.
Article 10 [Principle of Best Interests] Every creditor, regardless of whether he opposes or agrees to the draft reorganization plan, shall be able to obtain at least the liquidation that could be obtained in the bankruptcy liquidation procedure during the reorganization procedure.
Article 11 [Feasibility Principle] The draft reorganization plan must be feasible, the debtor can execute it and achieve the expected results, and help restore the debtor's ability to continue operations.
Article 12 [Administrative Licensing Principles] If the draft reorganization plan involves administrative licensing matters, the debtor or administrator shall obtain the written permission from the relevant administrative agency.
Chapter III Drafting Main Body and Submission of Draft Reorganization Plan
Di Shisan bar to the development of the body ], the draft debtor management assets and business of the debtor to make their own reorganization plan.
Where the administrator is responsible for the management of property and business affairs, the administrator shall prepare a draft of the reorganization plan.
Article 14 [Explanation of the draft reorganization plan] The debtor or administrator shall make an explanation on the draft reorganization plan while preparing the draft reorganization plan, so that it can be explained to the creditors meeting when the creditors meeting vote on the draft reorganization plan. And answer the inquiry.
Article 15 [Draft Proposal Rights] Creditors, shareholders, reorganization investors and other interested parties may make suggestions to the debtor or administrator on drafting the reorganization plan. If the debtor or administrator considers the proposal to be feasible, it may be included in the reorganization plan. Draft of the overall plan.
Article 16 [Subject change] If the debtor refuses to submit a draft of the reorganization plan to the people’s court without justifiable reasons or refuses to apply to the people’s court for an extension of the submission of the draft before the expiration of the time limit, the administrator has the right to apply to the people’s court to be managed by the administrator Property and business affairs, and a draft reorganization plan prepared by the administrator.
Article 17 [Submission] The debtor or the administrator shall submit a draft of the reorganization plan to the people’s court and the creditors’ meeting within six months from the date when the people’s court rules the debtor to reorganize.
At the expiration of the time limit specified in the preceding paragraph, upon the request of the debtor or the administrator, the people’s court may rule to extend the time limit for three months if there are legitimate reasons.
The debtor or the administrator is expected to be unable to submit the draft reorganization plan within six months, and shall submit an extension application to the people’s court within 15 days before the expiration of the time limit, and specify the progress of the draft reorganization plan, current problems or obstacles, and Corresponding solutions, request for extension of time, etc.
Article 18 [Submission shall not be postponed] The debtor or the administrator shall submit the draft reorganization plan strictly in accordance with the statutory time limit or the time limit after the extension of the people’s court ruling to avoid the people’s court ruling to terminate the reorganization procedure and declare the debtor bankrupt due to the delayed submission .
Article 19 [Procedures before submission] The draft reorganization plan prepared by the debtor shall be submitted to the administrator for review. The administrator has the right to make comments or suggestions on the legality and feasibility of the draft reorganization plan. The debtor shall follow the administrator’s Comments or suggestions are submitted after adjustment.
Article 20 [Seek opinions from major creditors and investors] In order to maximize the support of creditors and investors, the debtor or administrator may decide whether to seek major creditors before submitting the draft reorganization plan to the people’s court. Or the investor’s opinions, and the draft shall be adjusted accordingly before submitting.
Chapter 4 Main Contents of the Draft Reorganization Plan
Section 1 Introduction to the Basic Information of the Debtor
Article 21 [Interpretation ] In order to facilitate the people's court and the parties involved in the draft reorganization plan to read, the draft reorganization plan may include the meaning of the important terms in the draft at the beginning.
Di Er Shier bar to the draft reorganization plan] should preface briefly introduces the people's court accepts the debtor's reorganization and the appointment of an administrator of the basic situation, the progress of restructuring work, the manager duty performance, based on the development of the draft reorganization plan , Such as the result of the implementation of the reorganization plan, the social impact of the case and the significance of the success of the reorganization.
Di Ershi San bar to the draft reorganization plan to the basic situation of the debtor] should brief the debtor's establishment and history, including the establishment of the time the debtor, registered capital, registered address, legal representative, business scope; if the debtor is a listed company, It should also briefly introduce the exchange, stock abbreviation, stock code, etc. on which the debtor is listed.
Di Ershi Si bar to the ownership structure ] draft reorganization plan should brief the debtor's share structure, including the total number of shares, the number of shareholders, shareholders; if it is a listed company, should also introduce tradable shares and non-tradable shares, respectively, Quantity and proportion.
Di Er Shiwu bar to Operation ] draft reorganization plan should be brief run in recent years of the debtor, the debtor's financial situation worsen analysis because of inability to repay maturing debt; if the debtor is a listed company and was sentenced to exchange delisting risk In case of warning or suspension of listing, relevant information shall also be indicated.
Di twenty-six [ assets ] carrying amount of the composition of assets at the time of the draft reorganization plan of the debtor may enter the restructuring program in accordance with the accounting classification to sort out, and after a brief introduction of changes in assets of the debtor enters reorganization proceedings, if there is such financing If special assets such as leases are not included in the debtor’s property, reasons shall be explained.
The first article twenty-seven [ asset assessment ] draft reorganization plan should be based on an assessment issued by the asset appraisal report, to restructure the applications received as the base date, the total value of the debtor's assets and set out specific composition of.
Di Er Shiba bar to claims declarations ] the draft reorganization plan shall set forth as of a certain point of time, the total number of creditors to file claims to the administrator, to declare the total amount of debt, and which sets out the amount of claims secured with property and general amount of claims .
Di Er Shijiu bar to debt review ] draft reorganization plan shall specify the total number of creditors confirmed by the manager to review, the total amount of debt, and which sets out the amount of claims secured with property and general debt amount .
FirstArticle 30 [ Credits to be Confirmed ] If there is a claim that has been declared to the administrator but has not been confirmed by the administrator due to the pending litigation, the attached conditions have not been fulfilled, etc. , or although it has been confirmed by the administrator but has not been verified by the creditors meeting or the people’s court The creditor's right to be confirmed in the ruling must explain the reasons for confirmation, the nature and amount of the creditor's right to be confirmed.
Di Sanshi Yi bar to book describes not file claims ] If there is a debtor carrying undeclared but documented claims, this part shall state the nature and amount of debt.
Di San Shier bar to solvency analysis ] draft reorganization plan shall set forth the main content of solvency analysis report issued by the administrator or assessment, set out the general rate of assumed debt repayment debtor's bankruptcy liquidation for creditors' meeting Refer to the voting on the draft reorganization plan and the review and approval of the reorganization plan by the people's court.
Section 2 Adjustment Plan for Investors' Rights and Interests
Di Sanshi San bar to investors' equity adjustment programs Overview ] If reorganization proceedings involving the interests of investors adjustment issues, the draft reorganization plan should include the rights and interests of investors adjustment programs, and the investor group set to vote on the matter.
Article 34 [Necessity of Adjustment of Investor's Rights and Interests] The adjustment plan of investor's rights and interests shall specify the necessity of adjustment of investor's rights and interests, including the risk of debtor's bankruptcy and liquidation, analysis of shareholders' equity after bankruptcy and liquidation, and the shared burden between shareholders and creditors Whole cost.
Di San Shiwu bar to adjust the scope of ] the draft reorganization plan shall specify the scope of investor rights and interests of investors adjustment programs involved. Under normal circumstances, the investor group can be composed of shareholders who are registered in the debtor’s shareholder register as of a certain point in time. At the same time, the draft should specify that these shareholders are due to transactions or non-compliance between the equity registration date and the completion of the investor’s equity adjustment plan If the shareholding situation changes due to trading or other reasons, the effect of the investor's equity adjustment plan shall be on the transferee and /or successor of its shares .
Di San Shiliu bar to adjust the content ] investor equity adjustment programs shall specify the manner investor equity adjustments, adjustments before and after the change in investor interest, if there is restructuring investor investor interest in the transferee and / or equity investors The circumstances of repaying the creditor's claims must be explained.
Section 3 Classification, Adjustment and Repayment Plan of Claims
Di San Shiqi bar to creditor classification ] A reformer cases the actual situation, the draft reorganization plan to creditors can be divided into:
(1) The creditor's right to have a security right in the debtor's specific property;
(2) The wages and medical treatment, disability subsidies and pension expenses owed by the debtor to the employees, the basic endowment insurance and basic medical insurance expenses that should be credited to the employees' personal accounts, and the compensation that should be paid to the employees according to laws and administrative regulations gold;
In light of the actual situation of the case, the administrator may apply to the people's court to decide to establish a small claims group in the ordinary claims group when necessary .
FirstArticle 38 [ Debt Adjustment Plan ] The draft reorganization plan shall formulate corresponding creditor's rights adjustment plans for different creditor's rights classifications, and make provisions on the proportion of creditor's rights repayment, the treatment of insolvency, and the right of choice of creditors.
Article 39 [State's overall social security creditor's rights shall not be adjusted] The draft reorganization plan shall not reduce or exempt the social insurance expenses other than those specified in the second paragraph of Article 82 of the "Enterprise Bankruptcy Law" that the debtor owes.
The first article forty [ debt repayment program ] draft reorganization plan should be developed for different debt classification corresponding debt repayment programs, debt settlement on ways to provide for repayment period, the right to choose and other creditors.
Di Sishi Yi bar to sinking fund / stock Source ] draft reorganization plan should be clear debt financing; especially if it involves a debt-equity swaps, debt stock should also be clear source.
Article 42 [Provide Bank Account /Securities Account]The draft reorganization plan shall require the creditor to submit to the administrator the bank account or securities account receiving the distribution funds within a specific time after the people's court approves the draft reorganization plan, and clarify the risks and liabilities of the creditor's failure to provide timely or incorrectly.
Section 4 Business Plan
Di Sishi San [Article Analysis of status] draft reorganization plan should be combined with the debtor's financial situation, profitability, market conditions, forecast and other factors, a comprehensive analysis of the debtor's current business situation and problems to be solved.
Di Si Shisi bar to run the program content ] draft reorganization plan based on the status of the debtor's business full investigation and analysis, should be combined with the actual situation of the debtor from improved capital structure, enhance the management level, business restructuring, increased marketing efforts And other aspects elaborated on the plan to restore the debtor's sustainable business ability.
Di Si Shiwu bar to management plan requirements]The business plan in the draft reorganization plan should be targeted and feasible . Pertinence means that the business plan should fully consider the reasons for the debtor’s troubles, and combine the characteristics of the industry and the debtor’s actual situation to formulate a plan that meets the debtor’s actual situation and can completely solve the debtor’s problems. Feasibility means that the business plan should have strong operability and feasibility, and the plan should be specific and detailed, which will help the debtor regain profitability after successful reorganization, avoid re-entering bankruptcy procedures, and save social resources.
Section 5 Other
Di Si Shiliu bar to a reorganization plan for entry into force ] draft reorganization plan shall specify the restructuring plan draft to take effect after meeting one of the following conditions:
(1) All voting groups have passed the draft reorganization plan and approved by the People's Court ;
(2) Although each voting group failed to pass the draft reorganization plan , the people's court ruled and approved it in accordance with the second paragraph of Article 87 of the "Enterprise Bankruptcy Law" upon application by the administrator .
Article 47 [Effect of Unapproved Draft] The draft reorganization plan shall specify the draft reorganization plan or the effectiveness of the reorganization plan not approved by the people's court, that is, the people's court terminates the reorganization procedure and declares the debtor bankrupt.
The first article forty-eight [ effect after the entry into force of the draft ] draft reorganization plan shall set forth the effectiveness of the draft reorganization plan take effect, that is, to the debtor , the debtor of all shareholders, the debtor of all creditors, etc. are binding, and the reorganization plan draft The validity of the provisions on the rights and obligations of related parties and the successor or transferee of the rights and obligations.
Article 49 [Rights to Guarantors and Other Joint Debtors] The draft reorganization plan shall specify the rights of creditors to the debtor’s guarantor and other joint debtors, and shall not be affected by the reorganization plan.
Di Wushi bar to debt forgiveness ] draft reorganization plan shall set forth in accordance with the restructuring plan draft relief of debt, from the time the reorganization plan is finished, the debtor no longer bear the liability for repayment.
Di Wushi Yi bar to perform body ] draft reorganization plan shall set forth the reorganization plan by the debtor is responsible for implementing and clear transfer of property managers and business affairs of the debtor arrangements .
Article 52 [Supervisory Body] The draft of the reorganization plan shall state that the administrator is responsible for supervising the implementation of the reorganization plan, and clarify the supervisor's supervisory responsibilities.
Di Wushi San bar to execution period and supervision period ] draft reorganization plan shall specify the term for supervision and implementation period of the draft reorganization plan administrator, and a clear request for an extension before the expiry of the period. Normally, the supervision period should be consistent with the execution period.
Di Wu Shi Sitiao [ finished standard ] reorganization plan may set out a draft standard reorganization plan is finished according to the actual situation of the debtor, may generally include a complete restructuring costs have been paid, shall be paid in accordance with the various types of debt has been reformed The plan is paid off and other matters that need to be completed according to the case.
Di Wu [Article 45 consequences of the reorganization plan can not be executed ] draft reorganization plan shall specify the consequences of a debtor does not perform or can not perform the reorganization plan, namely the people's court shall rule to terminate the implementation of the reorganization plan, and declare the debtor bankrupt , and Clarify the corresponding legal consequences.
Article 56 [Handling of pending litigation and arbitration] The draft reorganization plan shall specify that the debtor has pending litigation or arbitration. During the supervision period stipulated in the reorganization plan , the administrator shall continue to participate in litigation and arbitration on behalf of the debtor .
Di Wushi Qi bar to court approval of a reorganization plan after a supplementary declaration ] draft reorganization plan shall specify the creditor does not file claims within the claims filing deadline, the People's Court ruled that the approval of a reorganization plan to add to file claims before the reorganization plan is finished , The administrator can accept the declaration and conduct review, but the creditor shall not exercise its rights during the execution of the reorganization plan; after the execution of the reorganization plan is completed, it may exercise its rights in accordance with the repayment conditions of similar claims stipulated in the reorganization plan.
Di Wushi Ba bar to the reorganization plan is finished declare ] the draft reorganization plan shall specify the creditor does not file claims within the claims filing deadline, after the reorganization plan is finished to add to file claims, the manager no longer accept the declaration, told The creditor claims the rights to the debtor.
Di Wu Shijiu bar to be confirmed claims have not been confirmed ] draft reorganization plan should clearly be the final claims have not been confirmed People's Court confirmed the ruling, according to the restructuring plan set aside for its handling debt assets. It can usually be used to supplement the debtor's follow-up business needs or to supplement distribution to other creditors .
Article 60 [The book record indicates that the declared creditor's rights have not yet been declared ] The draft reorganization plan shall specify the handling of the undeclared creditor's rights recorded on the book, which has not been claimed or has not occurred within a certain period of time after the completion of the implementation of the reorganization plan . Normally, the debtors will no longer be paid off, and the debt-servicing assets reserved for them according to the reorganization plan will be used to supplement the debtor's subsequent business needs or to supplement the distribution of other creditors .
Diliu Shi Yi bar to handle escrow and debt service funds and debt stock of] the draft reorganization plan should be on the creditor by the People's Court ruled that the creditors have not received confirmation of allocation in accordance with the reorganization plan of debt capital and / or debt stock Make clear arrangements. Managers will usually be made in accordance with the restructuring plan should allocate funds and / or escrow shares to managers designated bank account and / or card voucher accounts, escrow funds of debt and / or stock since the reorganization plan is finished If the creditor fails to receive the payment due to the creditor's own reasons after the expiration of a certain period from the date of the announcement, it shall be deemed to have waived the right to receive the payment. The deposited debt service funds /stock realisation income will be used to supplement the debtor's subsequent business needs or supplemental distribution to other creditors .
Di Liu Shi Er [bar changes and conditions of the restructuring plan ] conditions and procedures for the draft reorganization plan can clear the reorganization plan can not change and the consequences of change.
Shi Diliu San [Article cancel the property preservation measures ] draft reorganization plan should be clear after the people's court accepts the bankruptcy application, the debtor's property preservation measures should be lifted. Has not been released to the debtor's creditors, property preservation measures, the restructuring plan should be in people's court decides to approve the lifting of property preservation measures to assist with the procedure.
Chapter 5 Supplementary Provisions
Di Liu Shi Si bar to adjust and amend] the relevant laws, regulations, judicial interpretations adjusted or modified, the guidelines be adjusted and modified.
Di Liu Shi Wu bar to explain] the provisions of this guidance by the Tenth Shanghai Bar Association Bankruptcy liquidation business research committee responsible for the interpretation , as amended and supplemented .
Reprinted source: Oriental Lawyer