Purposes and missions of the thesis - The purpose of the thesis are developing reasoning on the procedures for recovery of business operations of insolvent enterprises that are incapabl
Trang 1VIETNAM ACADEMY OF SOCIAL SCIENCES
GRADUATE ACADEMY OF SOCIAL SCIENCES
TRAN THI THU HA
PROCEDURES FOR RECOVERY OF BUSINESS OPERATIONS OF INSOLVENT ENTERPRISES IN
VIETNAMESE BANKRUPTCY LAW
Major: Economic Law Code: 9 38 01 07
SUMMARY OF DOCTORAL THESIS IN LAW
HANOI - 2019
Trang 2
The Doctoral thesis was completed at:
GRADUATE ACADEMY OF SOCIAL SCIENCES
Supervisor: Assoc Prof Dr Nguyen Nhu Phat
The doctoral thesis will be examined by Examination Board of
Graduate Academy of Social Sciences at ………
The doctoral thesis can be found at:
- National Library of Vietnam;
- Library of Graduate Academy of Social Sciences
Trang 3INTRODUCTION
1 Rationale
The positive development of the socialist-oriented market economy in Vietnam over the past few decades has brought remarkable socio-economic achievements, but the loss and bankruptcy of Vietnamese enterprise has also increased constantly, causing many negative consequences for the economy, people and society Like other countries in the world, the State of Vietnam always sets out the task of resolving losses and bankruptcy in order to ensure a healthy and legal business environment for the participants in investment and business
The first Vietnamese Bankruptcy Law was promulgated in 1993 and was replaced by the Bankruptcy Law in 2004, effective from October 15, 2004 to January 31, 2014, in which the procedures for recovery of business operations was officially determined based on acquiring international experience and meeting the situation of domestic business development However, after more than 10 years of implementation, the realization this provision was not as successful as expected, there were only one successful case over the country On June 19, 2014, the National Assembly passed the Bankruptcy Law 2014 with the goal of “creating an opportunity for enterprises and cooperatives with conditions
to restore and restructure production and business activities”
However, the actual implementation of procedures for recovery of business operations of the insolvent enterprise that are under Chapter VII of the Law on Bankruptcy in 2014 is inadequate, the bankruptcy cases at the courts are hardly follow the procedures In most cases enterprises are enough signs of inability to pay debts, the recovery of enterprises by civil, economic and administrative methods before proceeding with bankruptcy procedures has brought more positive results than the method of implementation recovery procedures under the Bankruptcy Law
The above fact requires legal science that it is necessary to study and supplement the theory and to re-evaluate the current situation of law and practical implementation to create a basis for perfecting the law and organizing the implementation of restoring business operations of enterprises that are unable to pay due debts Besides, studying of the procedures in some developed countries will give a clearer view of the reasons for effective implementation of it
Trang 4Vietnam is in the process of becoming more and more aware of the socialist-oriented market economy The legal system, mechanisms and policies are increasingly perfected and been more suitable to international law and met practical requirements, in which the urgent need in the immediate period is improving market economy, innovation growth model and economic restructuring The country also needs judicial procedures for recovery of business operations of the insolvent enterprises that are more appropriately with market laws, strongly supporting the development of enterprises and the socio-economic
Facing the above situation, the doctoral student selected the topic
“Procedures for recovery of business operations of insolvent enterprises in Vietnamese bankruptcy law” as a doctoral thesis It has the meaning of both
legal science and practice of settling business bankruptcy procedures and ensuring the country's socio-economic stability and development
2 Purposes and missions of the thesis
- The purpose of the thesis are developing reasoning on the procedures for recovery of business operations of insolvent enterprises that are incapable of paying debts according to Vietnamese bankruptcy law; providing scientific arguments for assessing the legal situation, the practice of implementing procedures for recovery of business operations of insolvent enterprises and pointing out solutions of such problems
- The missions of the thesis:
+ Evaluating the overall situation of research and issues related to the thesis topic, identifying the left-open content, also debating to raise issues that need further research in the thesis
+ Researching, analyzing, clarifying and deepening some basic theoretical issues about procedures for recovery of business activities of insolvent enterprises; identifying specific content in this procedure
+ Researching, analyzing and properly evaluating the legal status of procedures for recovery of business activities of insolvent enterprises in Vietnam today; the actual implementation of law on procedures for recovery business activities of insolvent enterprises in Vietnam
+ Giving directions and solutions to improve the law and improve the effectiveness of law enforcement on procedures for recovery of business activities of insolvent enterprises in Vietnam today
3 Objects and scope of the thesis
Trang 5- The research objects of the thesis are the provisions of law and the practice of law on procedures for recovery of business activities of insolvent enterprises and legal provisions related to these procedures Enterprises that are the subject of the thesis are enterprises in general stipulated in the 2014 Enterprise Law (not including cooperatives under the Law on Cooperatives and business individuals)
- The scope the thesis include: Theoretical issues on procedures for recovery of business operations of insolvent enterprises and the legal experience
of some countries on the recovery of business activities of insolvent enterprises; legal documents that are closely related to the content of the thesis are issued from 2014 up to now in comparison with the previous documents and status; some cases of resolving bankruptcy requests and recovery of business operations
on legislation, on comprehensive renovation of the country and on development
of a market economy
4.2 Research methods
The thesis uses many different scientific and social research methods such as: analysis method, systematic method, combination and statistics method, historical methods, comparative methods
5 New scientific contributions of the thesis
Firstly, the thesis has supplemented the system of concepts and
characteristics of enterprises unable to pay debts; concepts, characteristics, principles and contents of business recovery procedures of enterprises losing their ability to pay debts in bankruptcy procedures
Secondly, the thesis has studied the trend of bankruptcy laws of the
countries generally and in three specific countries: the United States, France, and China, in orderto compare with Vietnamese law; proposed more effective solutions for the perfecting the theory and perfecting the law, overcoming the limitations of procedures for recovery business operations of enterprises that are unable to repay debts in Vietnam
Trang 6Thirdly, the thesis has analyzed and clarified the status of the law and
applied the law on procedures for recovery of business activities of insolvent enterprises
Fourthly, the thesis has raised the views, directions and solutions to
improve the law on procedures for recovery of business activities of insolvent enterprises as well as introduced a system of solutions to solve restrictions in implementing these procedures
6 Scientific and practical meanings of the thesis
- The thesis is a specific and scientific research in the law on recovery of business activities of insolvent enterprises in Vietnam The research results of the thesis contribute to supplement and develop theoretical issues about the procedures for recovery business operations of insolvent enterprise
- The thesis provides a scientific and practical basis for policy makers and competent agencies to refer to the improvement of the law on procedures for recovery of business operations of insolvent enterprises; to improve the efficiency of business recovery procedures of enterprises that are unable to repay debts in Vietnam In addition, the research results of the thesis are also valuable references for the research and teaching of law on the recovery of business activities of enterprises that are unable to pay debts
7 Structure of the thesis
In addition to the introduction, conclusion, references and list of works related to the thesis has been published, the thesis consists of 4 chapters
Chapter 1 OVERVIEW ABOUT RESEARCH AND THEORIES
1.1 Overview about research
1.1.1 General studies about law on bankruptcy of enterprises
Bankruptcy of enterprises is an area that has been mentioned by researchers for a long time, especially published works related to the process of developing and promulgating the Bankruptcy Law in 1993, in 2004 and in 2014 Many elaborate studies, documents on this topic series are published
It is possible to summarize the universal scientific and information values
of the above works as follows: (i) The research on the recovery of business operations of insolvent enterprises continues to develop the reason essays in specialized areas of corporate bankruptcy; (ii) Developing basic reasoning system about bankruptcy; (iii) Dividing into three criteria to determine the enterprise's inability to pay debts; (iv) Analysis of the initial bankruptcy theory,
Trang 7current bankruptcy theory and the modern view of interest rates and investment
in the effective relationship between bankruptcy and costs and interest rates; (v) Identifying the trend of the viewpoint of building bankruptcy law in Vietnam gradually shifting to protect enterprises from being unable to pay their debts; (vi) Providing comprehensive concepts and characteristics of bankruptcy and compare with dissolution of enterprises; situation of implementing Bankruptcy Law; (vii) In the field of finance and banking, research also show the specificity
or special regime of bankruptcy of banks and credit institutions with stricter criteria
1.1.2 Studies on procedures for recovery of business operations of enterprises are incapable of paying debts and settling bad debts
There are a few studies on procedures for recovery of business activities of insolvent enterprises and they are mainly integrated in the content of bankruptcy research and especially determined through the content “The goal of bankruptcy law” Currently, some master thesis in law and some research initially analysis this content
The above works mentioned the issues related to the procedures for recovery of business operations of insolvent enterprises, which are: (i) The reasoning on procedures for recovery of business activities in the theory of bankruptcy law; (ii) Bankruptcy law objectives; (iii) Analyzing Vietnamese and international bankruptcy laws; (iv) Legal status of procedures for recovery of business operations of enterprises that are unable to pay debts
In the field of bad debt payment, research have focused on researching bad debt payment activities in banks and credit institutions for each type of business and type of debt
1.2 Evaluation of research related to the thesis topic
- There have been many elaborate studies on the subject of business bankruptcy However, these works and articles only cover the basic contents of bankruptcy procedures in general, but have not studied in a comprehensive and systematic way about the legal aspects of submission procedures for recovery of insolvent businesses as an independent procedure; There is no comprehensive assessment of the status of the regulations on procedures for recovering business activities in Vietnam so that it can make recommendations to build and perfect the law on recovery procedures
- Scholars in the world have a consensus in the need to develop special procedures for the recovery of business operations of insolvent enterprises in the bankruptcy procedures of enterprises However, in different countries, scholars
Trang 8have made different arguments and ways to deal with procedures to recovery business operations of insolvent enterprises
- The search for a solution to improve the efficiency of the law on the recovery of business operations of insolvent is becoming increasingly necessary
- The research on procedures for recovery of business operations of insolvent enterprises are not profound, lack of systematic and yet to explain the reasoning, to apply foreign experiences and methods in accordance with Vietnamese practices
- At the doctoral thesis, there has not been a research project that systematically studies the problem of recovering business activities of insolvent enterprises to improve the law on this problem
On the basis of researching and analyzing documents, the thesis has inherited and determined the following research contents:
First, inheriting the results of research on the origin, the nature of
procedures for recovery of business operations of insovent enterprises in the common goal of bankruptcy law and supplementing theory system of business recovery of insolvent enterprises and the concepts, characteristics and related contents of this procedure
Second, acquiring some of the views stated in some foreign works and
some countries experiences on enhancing the active role of insolvent enterprises and regulations about asset management officers on procedures for recovery of business operations of insolvent enterprises, so that, the thesis continue to analyze the situation and propose solutions suitable to Vietnamese situation
Third, inheriting the analysis and assessment of the legal status and law
enforcement on procedures for recovery of business activities of insolvent enterprises that are mentioned in the master thesis and some research in the country; besides, developing the analysis of reality currently; adding new assessments discovered during the research process
Fourth, building a system of views, orientations and solutions to improve
the law on procedures for recovery of business activities of insolvent enterprises and solutions to improve law enforcement efficiency in this field
1.3 Basic theory of the thesis
- The Communist Party and State's views on perfecting the oriented market economy institutions, restructuring the economy and restructuring state enterprises and judicial reforms
socialist Theories and doctrines related to bankruptcy law, solving the insolvency and recovery of business operations of insolvent enterprises In addition, the
Trang 9notions, theories of humanities and solidarity in business are also interested to find ways to sympathize and understand among creditors with each other and with debtors (like an idiom “birds of a feather flock together”)
1.4 Research hypothesis and research questions
Research hypothesis:
Firstly: enterprises, that follow market-based, have rights of free competition, are inevitably capable of losing money, losing their ability to pay their debts and thus may go bankrupt
Secondly: procedures for recovery of business activities of insolvent enterprises have specific characteristics regarding the economic nature as well as the legal form of judicial procedures, so that it is necessary to ensure a legal basis that follows the nature of these procedures
Thirdly: Vietnam needs to consult and absorb the experience of other countries in a reasonable way to improve the law on procedures for recovery of business activities of insolvent enterprises
Fourthly: There should be scientific assessments on the legal situation and law enforcement in this area to have a more reasonable solution to implement the objectives
Research questions:
- What are the specific characteristics of business recovery of insolvent enterprises? Do the specificities of these procedures require specific processes and solutions in bankruptcy procedures for enterprises?
- How are the procedures for recovery of business operations of insolvent enterprises in the current law and how are they reasonable? How do these affect the process of recovery of business operations of insolvent enterprises, whether these support or hinder businesses and related subjects in the implementation process?
- What is the current situation in the process of implementing procedures for recovery of business of enterprises? Have the role, capacity, rights and obligations of the participants ensured effective implementation of these procedures?
- Is the legislative objective consistent with Vietnamese practices, in accordance with modern legislative trends? Why is the goal of business recovery
in bankruptcy procedures ineffective?
- What are the solutions to recovery of the business operations of the enterprises and promote their efficiency in practice, ensure stability and developing the economy?
Trang 101.5 Research results
- On theoretical aspects: The results of theoretical research provide a unified understanding of the concept, characteristics, nature and elements of the procedures for recovery of business operations of insolvent enterprises
- On practical aspects: The thesis properly assess the legal status of procedures for recovery of business activities of insolvent enterprises and the real situation of law implementation on these procedures in Vietnam; Gives opinions, directions and solutions to improve the law and overcome the limitations in implementing procedures for recovery of business activities of insolvent enterprises
Chapter 1 Conclusion
Chapter 2 THEORETICAL MATTERS ON PROCEDURES FOR RECOVERY OF BUSINESS OPERATIONS OF INSOLVENT ENTERPRISES AND
EXPERIENCES FROM OTHER COUNTRIES
2.1 Theoretical matters on insolvent enterprises in the Law on Bankruptcy and recovery of business operations of insolvent enterprises
2.1.1 The concept and characteristics of insolvent enterprises in the Law
on Bankruptcy
Through studying the insolvency factor of the enterprises that includes the due debt of the enterprise and the time of overdue debt, the researcher gives the definition: Insolvent enterprises are determined to be unable to pay a debt that is overdue
The legal characteristics of insolvent enterprises are expressed in the following three specific criteria: (i) Insolvent enterprises are have the characteristic of “not implementing obligation on debt payment within 03 months from the payment due date”; (ii) Loss of ability to pay due debts does not need the correspondence between debts and existing assets of the enterprises; (iii) The debt of an insolvent enterprise is generated from its legitimate business activities
Trang 112.1.2 The concept and nature of recovery of business operations of insolvent enterprises
2.1.2.1 The concept of recovery of business operations of insolvent enterprises
Recovery of business activities of insolvent enterprises (according to bankruptcy procedures) is a judicial procedure to recovery business operations
of enterprises towards the target that such enterprises are restored and repaid previously due debts of creditors and workers
Enterprises that need to recover have their own insolvency characteristic and are allowed to go through bankruptcy procedures In addition, there are also specific characteristics: Enterprises can recover business activities that based on effective factors/options; debts of insolvent enterprises can be paid/will be paid
in the future or can be erased, replaced by other forms; the consensus between creditors, insolvent enterprises and workers on the recovery procedures
2.1.2.2 The nature of recovery of business operations of insolvent enterprises
First, recovery of business operations of insolvent enterprises is an
economic activity (business reorganization);
Second, recovery of business operations of insolvent enterprises is a
judicial activity This is an economic activity carried out in the form of judicial procedures, which are regulated by the bankruptcy law in connection with proceedings at the Court, so that it is also called judicial proceedings (resolving bankruptcy cases)
Third, recovery of business operations of insolvent enterprises is a judicial
procedure to resolve the interests of creditors by creating stability for insolvent businesses
Fourth, recovery of business operations of insolvent enterprises has
Social aspect: A business is formed to contribute to the creation of wealth and material for society
2.2 Procedures for recovery of business operations of insolvent enterprises
Trang 122.2.1 The concept and characteristics of procedures for recovery of business operations of insolvent enterprises
2.2.1.1 The concept of procedures for recovery of business operations of insolvent enterprises
Procedures for recovery of business operations of insolvent enterprises are
bankruptcy procedures on the basis of agreements between creditors and enterprises approved at the creditors' conferences and recognized by courts; therefore, the insolvent enterprise carry out a business plan within a time limit fixed by agreement or prescribed by law, under the supervision of the Court and the representative of the creditor, aiming at enterprises are entitled to recover and repay the previously due debts of creditors and workers
2.2.1.2 The characteristics of procedures for recovery of business operations of insolvent enterprises
Firstly, the subjects include: Insolvent enterprises, creditors; the court as a
conductor of bankruptcy procedures; the People's Procuracy as a supervisor the implementation of these procedures for recovery of business activities of the enterprises; subjects of property management; subjects of supervising business activities and liquidating assets of enterprises
Secondly, the benefits that the parties are looking forward to: The main
benefit that the parties aim at in this relationship is the economic benefit to the major and usually non-state actors; socio-economic stability benefits for state actors; charge for the implementation of public services
Thirdly, the rights and obligations of the subjects: Insolvent enterprises are
obliged to build and organize the implementation of business recovery plans and have important rights to doing normal business Other entities have the right to decide according to the collective regime the plan of restoring business activities
of enterprises that are incapable of paying debts; supervise the implementation
of the plan; review the implementation of the business recovery plan of the enterprise; suspend the recovery plan of the business
Fourthly, the recovery procedure has its own characteristics in that it can
be converted into liquidation procedures in bankruptcy proceedings
2.2.2 The necessity, meanings and modes of recovery procedures of insolvent enterprises
2.2.2.1 The necessity of recovery procedures of insolvent enterprises in bankruptcy procedures
Modern law on bankruptcy always tends to raise the issue of implementing procedures to restore business operations of insolvent enterprises as a last
Trang 13chance that the State and society grant to businesses Therefore, the role of the law to recover business operations of insolvent businesses should be considered
as an easier way to create opportunities for entrepreneurs to continue to implement their “dream” after the failure
2.2.2.2 The meanings of recovery procedures of insolvent enterprises Firstly, for insolvent enterprises: The main recovery procedure is the last
rescue for businesses and entrepreneurs falling into bankruptcy to restore their business, restore their capabilities payment ability and reputation, trust of partners in the market
Secondly, for creditors: Procedures for recovery of business operations of
insolvent are aimed at maximizing the repayment of creditors, thereby protecting the rights of owners debt and related people
Thirdly, for employees: Procedures for recovery of business activities of
insolvent enterprises ensure labor rights and material, spiritual life of individuals and families least affected
Fourth, for the economy and the stability of society: Successful recovery of
enterprises falling into bankruptcy will contribute to limiting negative impacts
on society
2.2.2.3 Modes of recovery procedures of insolvent enterprises
First: Implement financial solutions
Secondly: Implement solutions to innovate production and business activities, improve efficiency and profitability
Third: Implementing solutions on organizational restructuring of the enterprise
Fourth: Implementing other solutions
2.2.2.4 The legal consequences of recovery procedures of insolvent enterprises
The first case: The enterprise has completed the business recovery plan,
fulfilling its debt repayment obligation to the creditors The bankruptcy relationship of the business under which it will end, return the full legal status to the business as before it became the litigant of bankruptcy
The second case: The enterprise fails to implement the plan to recover its
business operation or the time limit for implementing the business recovery plan
is still incapable of paying the debt The recovery of business operations of insolvent enterprises is terminated and will be transferred to liquidation procedures for bankruptcy