THE GOVERNMENT
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No. 114/2008/ND-CP
Hanoi, November 03, 2008
 
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.
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