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Case on the Bankruptcy of Guangdong International Trust & Investment Co., Ltd.
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廣東國際信托投資公司破產案
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【法寶引證碼】
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Case on the Bankruptcy of Guangdong International Trust & Investment Co., Ltd.
BASIC FACTS
Applicant: Guangdong International Trust & Investment Co., Ltd.. domiciled in Huangshi East Road, Guangzhou Municipality, Guangdong Province
Legal Representative: Mai Zhinan, general manager of the Trust & Investment Co., Ltd.
On January 11, 1999, Guangdong International Trust & Investment Co., Ltd. (hereinafter referred to as the Trust & Investment Co., Ltd.) applied to the Higher People's Court of Guangdong Province for bankruptcy due to its severe insolvency and incapacity to pay off its huge stake of debts.
The Higher People's Court of Guangdong Province held through hearing that:
Guangdong International Trust & Investment Co., Ltd. is originally named as Guandong Trust & Investment Co., Ltd., which was established upon registration in the Administrative Bureau for Industry and Commerce of Guangzhou Municipality and is a legal person enterprise as owned by the whole people, was approved as a non-bank financial institution by the People's Bank in 1983 and thus enjoyed the right to foreign exchange business. It was renamed as Guandong International Trust & Investment Co., Ltd. upon registration of alteration in the Administrative Bureau for Industry and Commerce with a registered capital of 1.2 billion yuan. Since 1992, the Trust & Investment Co., Ltd. conducted a lot of illegal operations such as allurement of deposits by high interest rates, beyond-account operations, unlawful borrowing and lending of funds and arbitrary investment, thereby failing to pay off its huge debts as due both at home and abroad, and was thus seriously insolvent. On October 6, 1998, the People's Bank of China decided to close down the Trust & Investment Co., Ltd and organized a bankruptcy liquidation group. During the period of liquidation, the relevant financial business as well as the related credits and debts of the Trust & Investment Co., Ltd. were subject to the trusteeship of the Bank of China, the Securities Business Departments as subordinated to the Trust & Investment Co., Ltd. were subject to the trusteeship of Guangdong Securities Co., Ltd. and the business operation thereof was carried on as usual. Through 3-month bankruptcy liquidation from October 6, 1998 to January 6, 1999, the total assets of the Trust & Investment Co., Ltd. were found to be 21.471 billion yuan and its liabilities 36. 165 billion yuan, with an overall debt-asset ratio of 168. 23 % and 14. 694 billion yuan of insolvency. On January 11, 1999, the Bank of China promulgated an Announcement on Clearing off the Credits of the Natural Persons of the Former International Investment Co., Ltd.. As to the fact that the Trust & Investment Co., Ltd. suffered from such severe insolvency that it was incapable of paying off its huge debts, the natural persons were only repaid the principals and without any interest. After the Bank of China cleared off the natural persons' debts owed by the Trust & Investment Co., Ltd., Guangdong Branch of the Bank of China declared the creditor's rights on behalf of the Fiscal Department of Guangdong Province and accepted the repayment according to the sequential order of bankruptcy liquidation as a general creditor.
The Higher People's Court of Guangdong Province held that, item (1), Article 3 of the Law of the People's Court on Enterprise Bankruptcy (for Trial Implementation) (hereinafter referred to as the Enterprise Bankruptcy Law) prescribes that: “Enterprises which, owing to poor operations and management that result in serious losses, are unable to repay their due debts shall be declared bankrupt in accordance with the provisions of this Law.” Article 8 prescribes that “The debtor, upon the agreement of its superior departments in charge, may apply for the declaration of bankruptcy.” The Trust & Investment Co., Ltd had such extreme chaos in management, suffered from serious insolvency and was incapable of repaying all its huge debts as due both at home and abroad, thereby meeting the relevant requirements for bankruptcy. Therefore, the Court adjudicated on January 16, 1999 that:
| | 廣東國際信托投資公司破產案
申請人：廣東國際信托投資公司。
法定代表人：麥智南，該公司總經理。
１９９９年１月１１日，廣東國際信托投資公司（以下簡稱廣東國投公司）以嚴重資不抵債、無法償付到期巨額債務為由，向廣東省高級人民法院申請破產。
廣東省高級人民法院經審理查明：
廣東國投公司原名為廣東省信托投資公司，１９８０年７月經廣東省人民政府批准在廣州市工商行政管理局注冊成立，系全民所有制企業法人。１９８３年經中國人民銀行批准為非銀行金融機構並享有外彙經營權；１９８４年３月經廣東省工商行政管理局注冊登記更改名稱為廣東國際信托投資公司，注冊資金為１２億元。１９９２年以來，廣東國投公司由于經營管理混亂，存在大量高息攬存、帳外經營、亂拆借資金、亂投資等違規經營活動，導致不能支付到期巨額境內外債務，嚴重資不抵債。１９９８年１０月６日，中國人民銀行決定關閉廣東國投公司，並組織關閉清算組對其進行關閉清算。關閉清算期間廣東國投公司的金融業務和相關的債權債務由中國銀行托管，廣東國投公司屬下的證券交易營業部由廣東證券有限責任公司托管，其業務經營活動照常進行。自１９９８年１０月６日至１９９９年１月６日為期三個月的關閉清算查明，廣東國投公司的總資產為２１４．７１億元，負債３６１．６５億元，總資產負債率１６８．２３％，資不抵債１４６．９４億元。１９９９年１月１１日，中國銀行發布《關于清償原省國投自然人債權的公告》，鑒于廣東國投公司已嚴重資不抵債、無力償還巨額債務，對自然人債權的清償，只支付本金，不支付利息；中國銀行清償廣東國投公司自然人債權後，中國銀行廣東省分行代廣東省財政廳依法申報債權，以普通債權人的身份按破產清償順序受償。
廣東省高級人民法院認為：《中華人民共和國企業破產法（試行）》（以下簡稱企業破產法）第三條第一項規定：“企業因經營管理不善造成嚴重虧損，不能清償到期債務的，依照本法規定宣告破產。”第八條規定：“債務人經其上級主管部門同意後，可以申請宣告破產。”廣東國投公司管理極度混亂，嚴重資不抵債，不能清償境內外巨額到期債務，符合法律規定的破產條件，于１９９９年１月１６日裁定：
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1. The Trust & Investment Co., Ltd. shall be subject to bankruptcy for repayment of debts.
| | 一、廣東國投公司破產還債。
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2. A liquidation group shall be designated to take over the bankruptcy of the Trust & Investment Co., Ltd.
After the ruling was announced, the bankruptcy liquidation of the Trust & Investment Co., Ltd. was carried out according to law by the following steps:
| | 二、指定清算組接管廣東國投公司。
裁定宣布後，廣東國投公司的破產清算工作依法按以下步驟進行：
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I. Declaration, Examination and Confirmation of the Creditors' Rights
On January 16, 1999, the Higher People's Court of Guangdong Province publicized an announcement on the Acceptance of Application of the Trust & Investment Co., Ltd. for Bankruptcy on the People's Daily and the People's Court Daily, respectively, requesting the creditors to declare their creditors' rights within 3 months as of the day of announcement. Where anyone fails to make declaration, it shall be deemed as a waiver. The other civil procedures of the Trust & Investment Co., Ltd. shall be suspended according to law. A petitioner for enforcement may, upon the strength of an effective legal document, declare its creditors' right. Any other procedure for civil litigation against the Trust & Investment Co., Ltd. shall be suspended or closed according to law. Within the term of announcement, a total of 320 creditors declared their creditors' rights, amounting to a total of 38. 77738 billion yuan of creditors' rights (including the 32. 01297 billion yuan as declared by 167 overseas creditors).
On April 22, 1999, the Higher People's Court of Guangdong Province held the first creditors' assembly for the bankruptcy of the Trust & Investment Co., Ltd., which was attended by the representatives of 244 creditors at home and abroad, 76% of the total creditors that had declared their creditors' rights. The Court announced the functions and power of the creditors' assembly and according to the amount of creditors' rights as respectively declared by each of the relevant creditors, designated 9 creditors including Swiss Bank Corp., Dai-Ichi Kangyo Bank, Ltd., Citibank, and the Bank of China to form a President's Commission of Creditors. The bankruptcy liquidation group reported the declaration of the creditors' rights to the representatives at the creditors' meeting. The principles for the disposal of insolvent assets of the Trust & Investment Co., Ltd. as set forth by the bankruptcy liquidation group was adopted.
The bankruptcy liquidation group made registration of and conducted examination on the creditors' rights as declared by the creditors and notified the results of examination to all the parties concerned that had declared their creditors' rights by either confirmation or rejection. Where a creditor had no different opinion on its creditors' rights as confirmed by the liquidation group, the liquidation group should submit it to the creditors' assembly for adoption through voting. Where a creditor had any different opinion on the result of confirmation as reached by the liquidation group, it should be filed with the Higher People's Court of Guangdong Province for ruling.
In light of the application of the creditors who had different opinions on their creditors' rights, the Higher People's Court of Guangdong Province publicly heard 62 demurrals regarding the declaration of the creditors' rights as involved in the bankruptcy of the Trust & Investment Co., Ltd. and made the following rulings as well:
| | 一、債權的申報、審核和確認
１９９９年１月１６日，廣東省高級人民法院分別在《人民日報》、《人民法院報》刊登受理廣東國投公司破產申請公告，要求債權人自公告之日起３個月內申報債權，逾期未申報的，視為自動放棄。對廣東國投公司的其他民事執行程序依法中止執行，申請執行人可憑生效的法律文書申報債權，對廣東國投公司的其他民事訴訟程序也依法終結或中止。公告期限內，共計３２０家債權人申報了債權，申報債權總金額共計３８７．７７３８億元（包括１６７家境外債權人申報債權３２０．１２９７億元）。
１９９９年４月２２日，廣東省高級人民法院主持召開廣東國投公司破產案第一次債權人會議，２４４家境內外債權人派代表出席了會議，占申報債權人總數的７６％。法院向債權人宣布了債權人會議的職權，並根據各債權人申報債權的數額，指定瑞士銀行、日本第一勸業銀行、美國花旗銀行、中國銀行等９家債權人組成債權人主席委員會。破產清算組向出席債權人會議的代表報告了債權申報情況。會議通過了由破產清算組提出的廣東國投公司破產財產處理的原則。
破產清算組對債權人申報的債權進行了登記和審核後，將審核結果分別以確認債權或拒絕申報的方式通知各債權申報人。債權人對清算組確認的債權無異議的，清算組提請債權人會議表決通過；債權申報人對清算組的確認結果有異議的，向廣東省高級人民法院提請裁定。
根據債權異議人的申請，廣東省高級人民法院分別對廣東國投公司破產案中６２件有關債權申報異議進行了公開審理，並分別作出了裁定：
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1. The secured creditors' rights as declared according to the Console Letters shall all be denied. In the action on confirmation of the creditors' rights, 15 creditors against Hong Kong subsidiaries of the Trust & Investment Co., Ltd. required the confirmation of their secured (probable) creditors' rights of 2.3 billion yuan upon the strength of the Console Letter as produced by the Trust & Investment Co., Ltd. The Higher People's Court of Guangdong Province held through hearing that, as to the format of the Console Letter, it is only an introductory letter as produced by the Trust & Investment Co., Ltd. to a unspecified third party rather than any agreement as concluded between the Trust & Investment Co., Ltd. and specified creditors; as to the contents thereof, there isn't any expression of intent for guaranty or any stipulation that if the debtor fails to make repayment, any other party shall make repayment on its behalf or assume the liabilities for clearing off the debts. Therefore, a Console Letter could not constitute any guaranty regarding the legal sense, had no legal force of securing the guaranty and thus the declaration of creditors' rights on the basis of the Console Letter shall all be rejected.
| | １．對依據安慰函申報的擔保債權全部予以否認。在確認債權訴訟中，有１５家廣東國投公司香港子公司的債權人持廣東國投公司出具的安慰函申報金額約２３億元的擔保（或然）債權，要求予以確認。廣東省高級人民法院經審理認為，安慰函從形式上看，不是廣東國投公司與特定債權人簽訂的，而是向不特定的第三人出具的介紹性函件；從內容上看，安慰函並無擔保的意思表示，沒有約定當債務人不履行債務時，代為履行或承擔還債責任。因此，安慰函不能構成中國法律意義上的保證，不具有保證擔保的法律效力，依據安慰函申報擔保債權全部被拒絕。
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2. The depositors of trust deposits may declare their creditors' rights over bankruptcy yet have no right to withdraw their trust deposits. In an action on the confirmation of the creditor's rights, 17 creditors declared their creditors' rights based on their trust deposits, up to 3. 8 billion yuan, to the liquidation group of the Trust & Investment Co., Ltd.. Some domestic creditors deemed that the trust deposits are trust assets featured by their independency. Thus, the trustee, the Trust & Investment Co., Ltd. only has the right to the management of the trust properties rather than the right to ownership, which shall belong to the relevant trustors who have claimed for their right to withdrawal. The Higher People's Court of Guangdong Province held through hearing that, the Trust & Investment Co., Ltd. produced trust deposit notes to depositors, stipulating that the depositors deposit their funds into the Trust & Investment Co., Ltd. and may, upon expiration, collect the relevant principals and interests, which are the features of a deposit contract. Thus the relationship between the depositors and the Trust & Investment Co., Ltd. are the relationship of credits and debts rather than any trust relationship. After the Trust & Investment Co., Ltd. is declared bankrupt, the remnant deposits shall be regarded as bankruptcy claims, for which the relevant depositors may enjoy no right to withdrawal.
．．．．．． | | ２．信托存款的存款人可以申報破產債權，但對信托存款無取回權。在確認債權訴訟中，有１７家債權人以信托存款為依據向廣東國投公司清算組申報債權金額３８億元。部分境內債權人認為信托存款屬于信托財產，具有獨立性，受托人廣東國投公司對信托財產不具有所有權，只具有經營管理權，信托財產的所有權屬于委托人，要求行使取回權。廣東省高級人民法院審理認為，廣東國投公司向存款人出具信托存款單，約定存款人將資金存入廣東國投公司，到期取回本息，具有存款合同的特征，存款人與廣東國投公司雙方設定的是債權債務關系，並非信托關系。廣東國投公司被宣告破產後，對于剩余存款應當確認為破產債權，存款人不享有取回權。
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