21 ALB CHINA INSOLVENCY & RESTRUCTURING GUIDE 2023 [3] Refer to Part 2, Article 8 of the Shanghai Municipal High People's Court Guidelines for Bankruptcy Trial Work (Trial). [4] Refer to Article 22 of the Guidelines on Several Issues Concerning the Trial of Enterprise Bankruptcy Cases by the Guangdong Provincial Higher People's Court (Yue Gao Fa Fa [2019] No. 6) and Article 3 of the Guidelines for Regulating the Trial of Bankruptcy Cases of Real Estate Enterprises by Courts throughout Kunming City (Trial) by the Kunming Intermediate People's Court. hereinafter referred to as the Summary on Bankruptcy Reorganization of Listed Companies), when a listed company qualifies for revival, shareholders holding more than one-tenth of the company’s shares may apply with the people’s court for its revival. This is a breakthrough in Article 70 of the Enterprise Bankruptcy Law, which states that competent capital contributors can only submit subsequent reorganization applications, it establishes that competent shareholders of listed companies have the right to initiate reorganization applications. 1.1.3 Applicants for the Revival against Financial Institutions According to Article 134 of the Enterprise Bankruptcy Law, if the debtor is a financial institution such as a commercial bank, securities company, or insurance company, the financial regulatory agency under the State Council shall apply for its revival. Meanwhile, Article 90 of the Insurance Law stipulates that, with the consent of the State Council's insurance regulatory authority, an insurance company or its creditors may apply for revival. It should be noted that although only the Insurance Law stipulates that creditors and debtors can initiate reorganization applications with the consent of the State Council's regulatory body, the State Council's regulatory agencies for financial institutions such as banks and insurance companies have been unified under the National Financial Supervision and Administration Bureau. The application of Article 70 of the Enterprise Bankruptcy Law, once approved, shall not be limited to reorganization applications for insurance companies. In practice, local courts have already clarified in their working guidelines that, with the consent of the State Council's regulatory body, financial institutions or their creditors can initiate reorganization applications[3]. 1.2 Examination of Reorganization Applications 1.2.1 Reorganization Application Materials The reorganization petition shall elucidate the debtor's business operations, financial status, and the necessity of revival, accompanied by relevant materials. Article 8 of the Enterprise Bankruptcy Law prescribes the general documentation that a debtor must submit when applying for revival. When creditors initiate a reorganization procedure, they usually must provide evidence concerning their claims, as well as evidence indicating the debtor's inability to clear off its debt as due. In addition, according to the Summary on Bankruptcy Reorganization of Listed Companies, applications for the bankruptcy reorganization of listed companies shall submit a report on the feasibility of revival for the listed company, materials regarding notifications from the provincial people’s government of the company’s domicile to the securities regulatory department, opinions from the securities regulatory department, and a stability maintenance plan issued by the people’s government of the listed company’s domicile. 1.2.2 Review by the People's Court According to Article 14 of the Minutes of the National Court Bankruptcy Trial Work Conference (Fa [2018] No. 53, hereinafter referred to as the Bankruptcy Conference Minutes) issued by the Supreme People's Court, when reviewing reorganization applications, the People's Court shall comprehensively assess the actual situation of the debtor to determine whether there is value and the possibility of rescue in reorganization. When different entities initially apply for revival, compromise, or bankruptcy liquidation against the same debtor, based on the principle of giving priority to the reorganization procedure, the court shall prioritize the acceptance of reorganization applications for debtors who have reasons for reorganization and possess reorganization value and feasibility[4]. According to Article 15 of the Bankruptcy Conference Minutes, for cases involving complex creditor-debtor relationships, a large scale of debt, or the reorganization of listed companies, the People's Court can organize hearings for the applicant and the respondent during the review of the reorganization application. According to the Summary of Listed Companies' Bankruptcy Reorganization, if the creditor applies for reorganization and the listed company objects within the legally prescribed time, or if creditors, listed companies, or capital contributors separately submit bankruptcy liquidation and reorganization applications to the People’s Court, a hearing shall be convened. It is
RkJQdWJsaXNoZXIy MjA0NzE4Mw==