2011年1月8日,A以甲公司不能清偿到期债务且资不抵债为由向人民法院提出破产申请。1月21日,人民法院裁定受理破产申请,指定了管理人
来源 :焚题库 2019-07-30
中参考答案:
(1)法院确定的债权申报期限不符合规定。根据规定,债权申报期限自人民法院发布受理破产申请公告之日起计算,最短不得少于30日,最长不得超过3个月。本题中,债权申报期限为1月21日~5月21日,超过了最长期限3个月,所以不符合规定。 (1) The court determines claims which do not meet the rules. According to this rule, for the creditors' claim filing period, from the date of bankruptcy petition acceptation, the period cannot exceed 3 months but not less than 30 days. In this question, from 21 January to 21 May, it is the creditor claim filing deadline period. It means that the period exceeds 3 months, so it does not meet the provision. (2)对A的异议不成立。根据有关规定,附利息债权在破产申请受理前的利息可作为债权申报。对B的异议不成立。根据规定,债务人的保证人或者其他连带债务人尚未代替债务人清偿债务的,以其对债务人的将来求偿权申报债权。但是,债权人已经向管理人申报全部债权的除外。所以,债权人可以直接向管理人申报全部债权,也可以要求连带责任保证人清偿。题目中说"应当由连带保证人承担"不符合规定。对C的异议不成立。根据规定,未到期的债权,在破产申请受理时视为到期。即可以申报债权。对D的异议不成立。根据规定,对债务人特定财产享有担保权的债权需依法申报。 (2) For objection of A, it should be objected. According to the related rules, interest on bond can be seemed as the creditor's rights to declare before the Bankruptcy petition acceptance. For objection of B, it should be objected. According to the rules, the guarantor of the debtor or other joint debtor who has not yet paid off the debt, future claims against the debtor in order to declare creditor's right. However, it is the exception that the creditors have already applied all creditors' rights. Thus, creditor can apply all the credit for the management directly; they also can require the associate creditor to be cleared. In this question, "Shall be borne by the joint and several guarantors" does not meet the rules. For the objection of C, it should be objected. According to the rules, the creditors' rights before maturity should be seemed as the expiration when the bankruptcy is applied. The creditors' rights can be applied. For the objection of D, it should be objected. According to the rules, specific property of the debtor shall enjoy the guaranteed creditor's rights. 1t should be declared in accordance with the law. (3)甲公司可以拒绝D为清偿其债权而拍卖抵押楼房的要求。根据规定,在重整期间,对债务人的特定财产享有的担保权暂停行使。所以甲公司可以拒绝D的要求。 (3) Company Jia could refuse the requirement that D auctions mortgage buildings for paying off debts. In accordance with provisions, during reforming period, hypothec for debtor's specific properties cannot be exercised temporarily. So Company Jia could refuse the requirement of D. (4)重整期间,甲公司为借款而以另一楼房提供担保的做法符合规定。根据规定,在重整期间,债务人或者管理人为继续营业而借款的,可以为该借款设定担保。所以甲公司的做法符合规定。 (4) During reforming period, Company Jia uses another building to offer guarantee for debts which is compliance with provisions. In accordance with provisions, during reforming period, if the debts happened by debtor or management as continuing operating, this debt could be guaranteed. So the method which Company Jia applies is compliance with provisions. (5)人民法院直接批准重整计划的做法不符合规定。根据规定,只有在担保债权获得全额清偿,其因延期清偿所受损失得到公平补偿,并且其担保权未受到实质性损害的情况下,法院才可以强行批准重整计划草案。在本案中,担保债权人因延期清偿所受损失未得到补偿,法院不能强行批准重整计划草案。 (5)It is not compliance with provisions which The People's Court approvals reforming plan directly. In accordance with provisions, only secure claims are totally paid off, the loss from deferred repayment are compensated fairly, and its hypothec is not injured materially, The People 's Court cloud cram down reforming plan draft. In this case, the loss from deferred repayment of guaranteed debtor is not compensated, The People's Court cannot cram down reforming plan draft. (6)甲公司不能要求一般债权人返还已清偿的款项。根据规定,人民法院裁定终止重整计划执行的,债权人因执行重整计划所受的清偿仍然有效,债权未受清偿的部分作为破产债权。 (6) Company Jia cannot ask general creditor repay the money which is paid off. In accordance with provisions, The People's Court ruled that terminating reforming plan exercised, the compensation occurred as exercising reforming plan of creditor is still working, the remaining is treated as credit of bankruptcy.