Act No. 122 / 1993 Coll.
Act amending and supplementing Act No. 328 / 1991 Coll., on bankruptcy and settlement
Valid
Effective from 16.04.1993
122
THE LAW
of 25 March 1993
amending and supplementing Act No 328 / 1991 Coll., on bankruptcy and settlement
Parliament has decided on this law of the Czech Republic:
Act No 328 / 1991 Coll., on bankruptcy and settlement, is amended as follows:
1. The following Section 1a is inserted after Section 1:
This Act shall not apply to the organisation of the property ratios of a local self-governing entity or other legal entity established by the law, where the State has taken over or guaranteed its debts. '
Article 2 (4) (1) reads as follows:
"(1) An application for bankruptcy shall be entitled to be filed by the debtor or by any of his creditors or by another person, if a special law so provides. ';
3. The following Sections 5a to 5f are inserted after Section 5, including the title:
"Withdrawal period
(1) The withdrawal period shall be authorised by the court on application by the debtor.
(2) The debtor may propose the authorisation of the withdrawal period within 15 days of receipt of the application for bankruptcy by a court lodged by the creditor or by a person other than the debtor. Where an application for bankruptcy is made by the debtor, the application for a withdrawal period may be accompanied by such a proposal; it may submit such a proposal later on within 15 days of the initiation of the procedure.
(3) The application for authorisation of a withdrawal period shall include, in addition to the general procedural requirements, the information to be entered from the Commercial Register, the list of the property of the debtor, including the lien and the lien, the list of creditors, indicating the amount of their claims, and the extent of the assets and liabilities on the last day of the preceding month.
(1) The Court of First Instance shall allow a period of withdrawal if the application is lodged in a timely manner by an authorised person and contains the required particulars; otherwise reject the proposal. The resolution shall be issued within 10 days of receipt of the application.
(2) The order authorising the withdrawal period shall be served by the court on the debtor and on the creditors mentioned in the application. They shall also be sent to the court which keeps the trade register in which the debtor is registered and to the cadastral offices which record the debtor's property; where the debtor is a State firm or other State organisation, or an organisation established or established by a municipality, the court shall send an order authorising the withdrawal period to those who are the founders or founders of the debtor in accordance with the special rules. In addition, they shall be posted on the official record of the court on the same day it was issued and published in the Trade Bulletin.
(3) The creditors mentioned in the application for a withdrawal period and the other creditors who applied for proceedings during the withdrawal period have the status of bankruptcy creditors (§ 7); If they come to the declaration of bankruptcy, the order must be delivered to them.
(4) At the same time as the withdrawal period is authorised, the court shall convene a meeting of creditors (§ 10) or, where appropriate, appoint a guardian for creditors (§ 11a). The creditors' meetings shall be elected by the creditor committee. The failure to deliver to one of the creditors when the meeting is convened does not preclude the validity of the choice if the order of the court to convene creditors was posted on the official record of the court and published in the Commercial Journal.
(5) An appeal shall not be admissible against the order by which the court authorises the withdrawal period.
The withdrawal period shall be three months and shall begin on the day on which the order on its authorisation was placed on the court's official record. The court may, on application by the debtor made during the withdrawal period, extend it for a maximum period of three months if the creditor committee so agrees.
For the duration of the withdrawal period
(a) bankruptcy cannot be declared and in bankruptcy proceedings the court shall be confined to the procedural acts required in respect of the duration of the withdrawal period;
(b) creditors may not recover from the debtor the satisfaction of their claims by the enforcement of a decision, except in the case of employment claims and other claims relating to taxes, fees, duties and social and health insurance premiums; the procedures already opened are suspended,
(c) the court may decide, on a proposal from the creditor committee or the guardian, that certain acts of the debtor shall not be taken at all or only after the prior agreement of the creditor committee or the guardian of the creditors; the legal acts carried out in breach of this court decision are ineffective against creditors;
(d) the legal acts by the debtor which would shorten the interests of creditors to satisfy their claims are ineffective to the creditors;
(e) the debtor is obliged to constantly seek to overcome bankruptcy and to inform the creditor committee or, where appropriate, the guardian of the measures taken and, if necessary, request their synergies.
(1) The withdrawal period expires before the expiry of the period provided for in Article 5c by the termination of the insolvency proceedings.
(2) The expiry of the withdrawal period will cease to have effect under Article 5d (a) and (e). The effects referred to in § 5d (b), (c) and (d) shall continue until the bankruptcy or termination of the bankruptcy proceedings. If an application for bankruptcy has been made by the debtor, the withdrawal period shall cease to have effect under Paragraph 5d (b).
(3) At the end of the withdrawal period, the court shall continue the insolvency proceedings.
If the debtor submits an application for compensation during the withdrawal period, the provisions of Part Three of this Act shall be followed. However, the withdrawal period shall not end until the court has decided on the application (Paragraph 50). '
4. Paragraph 10 (4) is deleted.
5.
(1) If the number of insolvency creditors exceeds 15, they shall be required to establish a creditor committee. In the case of a lower number of insolvency creditors, the insolvency creditors may elect their representative instead of the creditor committee; the provisions on the rights and obligations of the creditor committee shall apply mutatis mutandis to that representative.
(2) The CESR shall have at least three and a maximum of nine members; the number of members shall be decided by the meeting of the insolvency creditors. Each member of the creditor committee shall have an alternate.
(3) Only insolvency creditors may be members of the creditor committee and their alternates; where a legal person is a member or an alternate, it shall notify the court who will act for it on the creditor committee.
(4) The members of the creditor committee and their alternates elect meetings of bankruptcy creditors and confirm the court. If one of the members is unable to perform his or her duties or renounces his or her duties or is unable to attend the proceedings of the creditor committee, an alternate shall take his or her place. The court may order an additional choice.
(5) The creditor committee shall elect a chairman and vice-chairman from among its members, oversee the activities of the administrator and carry out the tasks provided for by this law or imposed on it by the court. He shall be entitled to make submissions to the court concerning the conduct of the proceedings.
(6) The credit committee shall meet on its own initiative or be convened by a court. It shall act by a majority of its members; the members absent are represented by alternates.
(7) The members and alternates of the creditor committee are entitled to reimbursement of the necessary expenses associated with the performance of their duties and to an appropriate remuneration to be determined by the court; those claims are claims for substance pursuant to § 31 (2). '
6. The following Section 11a is inserted after Section 11:
Until a creditor committee is set up or a representative of creditors of insolvency creditors' meetings is elected, the court may appoint a guardian for creditors, (1a) if necessary to protect their rights. The rights and obligations of the guardian shall cease by the establishment of a creditor committee or by the election of a representative of creditors pursuant to Article 11 (1). '
Note 1 (1a):
"(1a) § 29 of Act No. 99 / 1963 Coll. '.
7. in Article 14 (1), point (j) and footnote 3 shall be deleted;
8. In the first sentence of Paragraph 18 (1), the words "and the co-operation of the creditor committee 'are added at the end.
9. Paragraph 18 (3) reads as follows:
"(3) The inventory shall include an estimate made by a judicial expert in accordance with the pricing rules in force at the date of implementation of the inventory. (4a) If the creditor committee agrees, the court may be satisfied with the valuation of the insolvency or the trustee."
Note 4a:
"(4a) For example, Decree No. 393 / 1991 of the Ministry of Finance of the Czech Republic Coll., on the prices of buildings, land, permanent crops, fees for the establishment of the right of personal land use and compensation for temporary land use, as amended."
10. In Paragraph 26 (2), the following sentence is added at the end: "This agreement must be approved by the creditor committee before it is brought before the court."
11. Article 27 (2) reads as follows:
"(2) The sale outside the auction shall be made by the administrator, with the agreement of the court and the creditor committee and after hearing the insolvency practitioner under the conditions laid down by the court. Things can be sold outside the auction and below the estimated price. Similarly, the insolvency practitioners of the contested or difficult to enforce claims may be transferred. '
12. In Paragraph 27 (4), the following sentence is added at the end: "The creditor committee must give its consent in advance."
13. the following Article 27a is inserted after Article 27:
With the agreement of the court and the creditor committee, the administrator may monetize cases, rights and other assets which serve the operation of an undertaking by one contract; otherwise the provisions of the Commercial Code shall apply mutatis mutandis to this contract. (4b) The proceeds of such sale are part of the total proceeds of the liquidation of the assets and cannot be used solely to cover liabilities relating to the company sold. "
Note 4b:
"4b) § 476 et seq. of Act No. 513 / 1991 Coll., Commercial Code. '.
14. In Paragraph 29 (3), the words "or even 'are replaced by the words" and'.
15.
Relationship to privatisation
(1) A special scheme shall apply to bankruptcy proceedings in which the debtor is a state firm, other state organisation or other legal entity in whose business the State participates and which is listed in a list approved by the Government and published in the Commercial Journal.
(2) The court will send a motion to declare the debtor's bankruptcy to the Ministry of National Property Management and its privatisation of the Czech Republic (hereinafter the "Ministry"). The Ministry may, within 15 days of receipt of this communication, propose to the court the authorisation of the withdrawal period; This is without prejudice to the debtor's right under § 5a.
(3) The Court of First Instance authorises a withdrawal period on a proposal from the Ministry, if the application is submitted in due time, containing the prescribed requirements (Section 5a (3)) and if the Ministry provides evidence that the debtor was to be privatised under Act No. 92 / 1991 Coll., on the terms of the transfer of the State's assets to other persons, as amended. The application for a withdrawal period by the Ministry may not contain a list of the debtor's creditors and their claims and a list of the debtor's properties; Such formalities shall be completed by the debtor at the request of the court within 15 days. The order authorising the withdrawal period shall be served by the court in addition to the persons referred to in § 5b (2) and by the Ministry. Article 5c applies to the running and duration of the withdrawal period.
(4) Where a privatisation project has already been approved for the property or shares of the debtor before the application for bankruptcy has been submitted and the Ministry has provided evidence of this in the application for a withdrawal period, the withdrawal period referred to in paragraph 3 shall be extended until the transfer of the privatised assets to the new acquirer or until two months have elapsed since the transfer of at least 34% of the shares to the specific acquirer, unless these events have already occurred before its expiry. The extension shall expire no later than six months after the date of submission of the application for bankruptcy.
(5) If the privatisation project is approved for the assets or shares of the debtor within the withdrawal period referred to in paragraph 3 and the Ministry has provided evidence to the court, the withdrawal period shall be extended until the transfer of the privatised assets to the new acquirer or within two months of the transfer of at least 34% of the shares to the specific acquirer, but no more than six months after the approval of the privatisation project.
(6) The provisions of paragraphs 4 and 5 shall also apply to the withdrawal period permitted on application by the debtor.
(7) If, according to an approved privatisation project, the debtor's assets are transferred to the National Property Fund of the Czech Republic (hereinafter referred to as "the Fund") and a commercial company is set up when the company is wound up without liquidation, the court will allow a withdrawal period of six months after the application for bankruptcy is lodged. This period may be proposed by the Ministry; the provisions of paragraphs 2 and 3 shall apply mutatis mutandis to the draft Ministry.
(8) The transfer of part of the debtor's assets to the Fund shall not prevent a declaration of bankruptcy or a settlement permit. However, creditors whose claims relate wholly to that part of the assets may not participate in the competition or compensation; where they relate only partially to it, their claims shall be reduced proportionally.
(9) The tender cannot be declared for a debtor for which, according to the privatisation project, at least 50% of the shares were included in the coupon privatisation offer. The government may authorise the exemption on a proposal from the Ministry. It shall communicate its decision to the competent court. The period in which bankruptcy cannot be declared shall run from the time of publication of the debtor in the list of public limited liability companies which will be privatised in the given privatisation wave using investment coupons, 6a) until two months after the end of the transfer of the shares of the debtor to the holders of investment coupons and investment privatisation funds. During that period, the time limits for the submission of applications for the authorisation of a withdrawal period and the period of withdrawal shall not be interrupted. The effects of § 5d last for this period.
(10) The debtor shall immediately communicate to the competent court the facts which, pursuant to paragraphs 4 to 9, are relevant for the extension and termination of the withdrawal period and those which prevent the bankruptcy declaration referred to in paragraph 9. In the communication on the transfer of part of the debtor's assets to the Fund, the debtor shall indicate the assets and liabilities relating thereto.
(11) At the time of the withdrawal period permitted under paragraphs 2, 4, 5 and 7, the court may not impose restrictions on the debtor preventing the transfer of assets or holdings to the Fund or to a new acquirer under an approved privatisation project. ';
Note 6a:
"6a) Ordinance of the Government of the Czech and Slovak Federal Republic No. 383 / 1991 Coll., on the issue and use of investment coupons, as amended by the Government of the Czech and Slovak Federal Republic No. 69 / 1992 Coll. '.
16. After Paragraph 67, the following Sections 67a to 67d are inserted:
"Specific provisions on senior debtors
(1) Labour entitlements (§ 31 (3)) of managers whose employment is created by appointment of 6b) (hereinafter referred to as "managers"), which arose after the bankruptcy declaration, can be met only up to CZK 10,000 per month during the bankruptcy procedure (§ 31 (1)).
(2) The employment entitlements of managers referred to in paragraph 1, in excess of the amount indicated therein, and their working entitlements referred to in Article 32 (2) (a) shall be met as other claims [Paragraph 32 (2) (c)].
(3) In the event of compensation, the employment entitlements of managers shall be the priority claims only up to the above mentioned paragraph 1.
(4) The claims of persons who are not in employment but who are engaged in work for the debtor due to otherwise senior staff shall be satisfied in bankruptcy or compensation as other claims without any advantage.
(1) The managers of the debtor and persons close to them (4) may not acquire ownership of the items owned by the debtor, even if they have been cashed in by auction, when the debtor is bankrupt or compensated. Such cases may not be transferred to them within three years of the end of the bankruptcy or settlement. Legal acts taken in breach of this provision shall be void.
(2) The provisions of paragraph 1 shall also apply to the members of the debtor, if it is a public commercial company, a limited limited partnership and a limited liability company, where the members act as head of staff in accordance with paragraph 1. The same applies to shareholders of public limited liability companies if they operate in their institutions or own shares corresponding to more than one tenth of the company's capital. However, in justified cases, the court may decide on an exemption.
Specific provisions on farmers in agricultural production
(1) The tender cannot be declared for a debtor who is a legal or natural person whose primary activity is agricultural production during the period from 1 April to 30 September, while the time-limits for the application for authorisation of a withdrawal period and the time-limits referred to in Sections 5a and 5c are not interrupted. The effects of § 5d last for this period.
(2) Agricultural primary production means the management of agricultural parcels resulting in plant or animal products before further processing.
(c) until 31 December 1994, unless the debtor gives his consent. '
Notes No 6b and No 6c are as follows:
"(6b) Paragraph 27 (4) and (5) of the Labour Code.
6c) Act No. 105 / 1990 Coll., on the Private Entrepreneurship of Citizens, as amended by Act No. 219 / 1991 Coll. '
17. In Section 68, the heading "Relation to restitution claims' is added under the numerical description of the section.
18. In Section 69, the heading "Competitions with a foreign element 'is added under the heading.
19. in Article 69 (1) and (2), the words "Czech and Slovak Federal Republic" are replaced by the words "Czech Republic."
20. The heading "Transitional and final provisions' shall be added to the numerical indication § 70.
(1) The provisions of this Law shall also apply to proceedings initiated before the date of its application, unless otherwise provided for in the law; the legal effects of the acts which took place in the proceedings before the application of this law remain.
(2) In the absence of a declaration of bankruptcy, the application for a withdrawal period may also be submitted within 15 days of the date of application of this Act.
(3) If an application for bankruptcy has already been lodged in cases where bankruptcy is not admissible under this law, the court shall terminate the proceedings. If an bankruptcy has already been declared, it shall be annulled by the court in accordance with Paragraph 44.
(4) If it has not been established by the creditor committee in cases where it is necessary under this law, the court shall convene a meeting of creditors to establish it within 30 days of the effectiveness of the law.
(5) Paragraph 5b (4) applies mutatis mutandis to meetings of insolvency creditors convened outside the withdrawal period.
The President of the Chamber of Deputies of the Parliament of the Czech Republic is hereby authorised to declare in the Collection of Laws of the Czech Republic the full text of Act No. 328 / 1991 Coll., on bankruptcy and settlement, as is apparent from the amendments and additions made by this Act.
This Act shall take effect on the day of its publication.
Uhde v. r.
Havel v. r.
Klaus v. r.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | Act No. 122 / 1993 Coll., amending and supplementing Act No. 328 / 1991 Coll., on bankruptcy and settlement |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 16.04.1993 |
|---|---|
| Effective from | 16.04.1993 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0