Is the lawsuit filed during the declaration of bankruptcy claims a confirmation lawsuit or a private loan?

The Nature of Bankruptcy Creditor's Rights Confirmation Litigation The Legal Nature of Bankruptcy Creditor's Rights Confirmation Litigation. There are four main viewpoints abroad: (1) It is believed that the lawsuit of obtaining payment in the name of debt is for bankruptcy execution; (2) It is considered as a payment lawsuit that requires the objector to withdraw his objection or acknowledge the expression of creditor's rights; (3) It is considered to be a lawsuit aimed at eliminating objections and forming the effectiveness of creditor's rights; (4) It is considered as a confirmation lawsuit to confirm the qualification, deposit, order and amount of bankruptcy claims. Ishikawa, a famous Japanese bankruptcy jurist, believes that the fourth view is correct. In our country, because the creditor's rights confirmation litigation is a newly created litigation system in the enterprise bankruptcy law, there is still a lack of in-depth research on its nature in academic circles. But it can be understood as three properties: confirmation behavior, establishment behavior and payment behavior. Because, after the people's court accepts the bankruptcy application, the creditor can't actually sue the debtor to pay off the disputed creditor's rights, and can only participate in the bankruptcy property distribution or reorganization and reconciliation procedure for the determined creditor's rights, so this kind of lawsuit is not a payment lawsuit. At the same time, the purpose of the lawsuit is not to eliminate the effectiveness of the objection, but to confirm the creditor's rights and directly determine whether it can participate in the compensation distribution, so it is a typical confirmation lawsuit rather than a lawsuit. Therefore, litigation related to creditor's rights disputes can be called bankruptcy creditor's rights confirmation litigation. The types of litigation for confirming creditor's rights are listed in the directory 1. If the debtor disagrees with the creditor's rights recorded in the creditor's rights table, he may bring a lawsuit to the people's court. Because according to China's enterprise bankruptcy law, the debtor's position is independent of the administrator, especially in the process of reorganization and reconciliation, representing different interests. It is the administrator, not the debtor, who examines the declared creditor's rights and prepares the creditor's rights table to record the creditor's rights. Since the legal status of the administrator is independent of the debtor and does not fully represent the debtor, the debtor should be allowed to raise his own objection to the creditor's rights examined and recorded by the administrator, and the debtor should be allowed to bring a lawsuit to the court to confirm the creditor's rights. When the debtor brings a lawsuit against the creditor's rights recorded in the creditor's rights table, the debtor, as the plaintiff of the creditor's rights confirmation lawsuit, shall list the creditor whose creditor's rights are disputed as the defendant. If there are other dissenters besides the debtor, the debtor can absorb other dissenters as his own party, that is, with the plaintiff. It should be noted that according to Item 7 of Article 25 of the Enterprise Bankruptcy Law, one of the functions and powers of the administrator is to "represent the debtor in litigation, arbitration or other legal procedures". If the debtor disagrees with the creditor's rights recorded in the creditor's rights table prepared by the administrator, he may bring a lawsuit to the people's court. Is the creditor's rights confirmation litigation conducted by the administrator's representative at this time? If the administrator carries out this kind of lawsuit on behalf of the debtor, it will make the administrator fall into a contradictory situation of self-denial of the creditor's rights determined by his own examination, and his role status is quite embarrassing, so it is difficult to complete the will task. In order to avoid the above problems, scholars believe that if the debtor has any objection to the creditor's rights recorded in the creditor's rights list compiled by the administrator, he can bring a lawsuit. This lawsuit cannot be represented by the administrator, but should be decided by the debtor's authority. 2. If the creditor has any objection to his own creditor's rights recorded in the creditor's rights table, he can of course bring a lawsuit to the people's court to ask for confirmation of the creditor's rights, because it involves his own vital interests. I already have a good idea about this, so I don't need to elaborate. If the creditor disagrees with his own creditor's rights recorded in the creditor's rights table, the creditor, as the plaintiff of the creditor's rights confirmation lawsuit, shall list the debtor as the defendant. If any other dissenter denies his creditor's rights, the creditor may take other dissenters as co-defendants. 3. If the creditor disagrees with the creditor's rights of the other party recorded in the creditor's rights table, the dissenting creditor may bring a confirmation lawsuit to the people's court. The legal basis for the dissenting creditor to file a confirmation lawsuit against the dissenting creditor's right is that the creditor can exercise the right of defense belonging to the debtor or the administrator by subrogation. Because the behavior of the parties to increase the distribution of bankruptcy property is equivalent to the behavior of preserving creditor's rights, they can exercise subrogation according to Article 73 of the Contract Law of our country. The right of subrogation here is not only stipulated in the civil law, but also a unique right based on the creditor's right of dissent in the bankruptcy law. "Because it is not based on the reasons of objection and creditors' personal reasons, it is only the reason for the debtor's debt elimination. Therefore, the use of prescription will take liquidation, offset and exemption as the reasons for the elimination of debts. To the extent that the debtor can claim rights, the creditor can claim rights by subrogation as the reason for objection. " If the creditor disagrees with the creditor's rights of the other party recorded in the creditor's rights table, the dissenting creditor, as the plaintiff of the creditor's rights confirmation lawsuit, shall list the debtor and the creditor whose creditor's rights are in dispute as * * * co-defendants. If there are more than one dissenter, you can take the plaintiff as * * * and bring a lawsuit. The catalogue lists the conditions for filing a lawsuit for confirming creditor's rights. Creditor's rights confirmation litigation is a special litigation procedure set up by legislators to properly solve the substantive disputes of disputed creditor's rights and determine the final judicial review and confirmation procedures of creditor's rights. Therefore, the following requirements should be met. 1. Creditors shall declare their claims according to law, otherwise they shall not exercise their litigation rights, except for special claims that do not need to be declared according to law. According to Article 48 1 and Article 56 of the Enterprise Bankruptcy Law, creditors shall declare their claims to the administrator within the time limit prescribed by the people's court; If a creditor fails to declare his creditor's rights in accordance with the provisions of the bankruptcy law, he shall not exercise his right to bring a lawsuit to confirm his creditor's rights in accordance with the procedures stipulated in this law. The special creditor's rights that do not need to be declared by law mainly refer to the employee's labor creditor's rights stipulated in the second paragraph of Article 48 of the Enterprise Bankruptcy Law and the tax creditor's rights in the sense of public law. 2. The administrator has completed the examination procedures for the creditor's rights declared by the creditor, and compiled the creditor's rights table, or completed the investigation and publicity procedures for the special creditor's rights that are not required to be declared by law. According to the legislation of Enterprise Bankruptcy Law, the law gives the administrator the authority to examine and investigate the creditor's rights, and all creditor's rights must be examined and verified by the administrator before they can be confirmed or not. Before the administrator completes the procedures of examination, verification and publicity of the creditor's rights, no one may bring a lawsuit to confirm the creditor's rights. If the creditor's rights are still in the state of being examined and determined, it is only a nuisance to file relevant lawsuits, and there is no real benefit. 3. If the creditor has any objection to the creditor's rights recorded in the creditor's rights list or the creditor's rights list reviewed, compiled and publicized by the manager, the lawsuit can only be brought if the manager refuses to accept it. The object of litigation is only the objection to the creditor's rights recorded by the administrator. Because according to the second paragraph of Article 48 and Article 58 of the Enterprise Bankruptcy Law, if the debtor and the creditor have no objection to the creditor's rights recorded in the creditor's rights table, the people's court will directly exercise the right to confirm the creditor's rights and make a ruling to confirm it. The creditor's rights confirmed by the people's court ruling have the same legal effect as the final judgment, and are binding on the debtor and all creditors, and no one may bring a lawsuit again. Only when the debtor and the creditor have objections to the creditor's rights recorded in the creditor's rights table and there is a substantive dispute can they bring a lawsuit. 4. The litigation expenses shall be paid according to law. According to Article 107 of the Civil Procedure Law, if a party files a civil lawsuit, it shall pay the case acceptance fee and other litigation fees in accordance with relevant regulations. Creditor's rights confirmation litigation is a property dispute litigation case independent of bankruptcy cases, and litigation fees should be paid according to law. The trial procedure of creditor's rights confirmation litigation is listed in 1, the right to file a case and the responsibility to sue for creditor's rights confirmation litigation. When the debtor and creditor disagree with the creditor's rights recorded in the creditor's rights table, who should have the right to take the initiative to file a lawsuit to determine the creditor's rights, or who should bear the prosecution responsibility? Our country's law is not clear about this issue, and both debtors and creditors can take the initiative to file a lawsuit. In foreign countries, it depends on whether the disputed creditor's rights are nominal or nominal. Nominal creditor's right refers to the creditor's right that has been executed or determined by the effective judgment, and nominal creditor's right refers to the creditor's right that has not been executed or the creditor's right that has not been determined by the effective judgment. In the case of nominal creditor's rights, the dissident shall bear the responsibility of prosecution; In the absence of nominal creditor's rights, dissenting creditors will file a lawsuit. This division of prosecution responsibility is also in line with China's current legal system and can be used for reference and absorption by China's creditor's rights confirmation litigation system. 2, exclusive jurisdiction of creditor's rights confirmation litigation cases. From the perspective of comparative law, most countries' bankruptcy laws stipulate that cases related to creditor's rights confirmation litigation are under the exclusive jurisdiction of bankruptcy courts. Although China's Enterprise Bankruptcy Law does not directly stipulate the exclusive jurisdiction of the litigation cases of creditor's rights confirmation, according to Article 2 1 of the Law: "After the people's court accepts the bankruptcy application, the civil litigation concerning the debtor can only be brought to the people's court that accepts the bankruptcy application." As a kind of civil litigation involving debtors, creditor's rights confirmation litigation can only be brought to the people's court that accepts bankruptcy applications, and the people's court that accepts bankruptcy applications has centralized jurisdiction. Even if the object of litigation does not belong to the jurisdiction of the people's court that accepts the bankruptcy application, the court also enjoys exclusive jurisdiction over the litigation of creditor's rights confirmation, and is not limited by the provisions on hierarchical jurisdiction. However, according to the provisions of Article 20 of the Enterprise Bankruptcy Law, the creditor's rights confirmation litigation that has been filed before the bankruptcy application is accepted may be continued by the court that originally tried the case, and it is not necessary to transfer the case to the people's court that accepted the bankruptcy application for trial. 3. The application of law in the procedure of creditor's rights confirmation. Creditor's rights confirmation litigation belongs to the civil litigation of substantive disputes between the parties in bankruptcy proceedings, and should be tried in accordance with the relevant procedures stipulated in the relevant civil procedure law. In this regard, Article 4 of the Enterprise Bankruptcy Law stipulates: "The relevant provisions of the Civil Procedure Law shall apply to the trial procedures of bankruptcy cases not stipulated in this Law." Therefore, the creditor's rights confirmation litigation can directly apply the relevant provisions of the Civil Procedure Law, including the trial organization, the first-instance and second-instance procedures. It should be noted that the creditor's rights confirmation lawsuit was originally attached to the bankruptcy procedure, and the purpose of the lawsuit was to participate in or exclude its participation in the distribution of bankruptcy property. If it is delayed for too long, it will lose its meaning, so it should be finished as soon as possible. In this regard, the Swiss bankruptcy law specifically stipulates that "this lawsuit shall be tried according to the accelerated procedure", which has a good reference significance. 4. Coordination between creditor's rights confirmation procedure and bankruptcy procedure. Because China's enterprise bankruptcy law adopts the principle of separate trial of bankruptcy procedure and substantive dispute civil procedure, the creditor's rights confirmation lawsuit will not affect the bankruptcy liquidation procedure as the main procedure. However, because the purpose of creditor's rights confirmation litigation is to determine whether creditor's rights can participate in the distribution of bankruptcy property, and the trial procedures of debtor's bankruptcy cases and related creditor's rights confirmation litigation cases are carried out separately and often out of sync, the coordination of legal procedures will inevitably arise. If the litigation cases confirmed by creditor's rights are concluded first, the creditor's rights confirmed by judgment can of course participate in the distribution of bankruptcy property. However, if the debtor's bankruptcy liquidation is completed ahead of schedule, by the time the bankruptcy property is distributed, the relevant creditor's rights confirmation litigation case is still under trial. At this time, the creditor's rights in the ongoing litigation are pending claims. The administrator shall, in accordance with the provisions of Article 1 19 of the Enterprise Bankruptcy Law, reserve the distribution amount of pending claims and deposit it. When the litigation case is concluded, it shall be distributed according to the creditor's rights determined in the final judgment; If the distribution has not been accepted within two years since the end of the bankruptcy proceedings, the people's court shall distribute the distribution amount deposited to other creditors. Therefore, the litigation of creditor's rights confirmation cannot be delayed excessively, and it must be completed within two years from the date of the end of bankruptcy proceedings, otherwise it will lose its legal and economic significance. Once the people's court makes an effective judgment on the case of confirming creditor's rights, the disputed creditor's rights will be settled, from "pending creditor's rights" to "confirmed creditor's rights". The judgment result of the creditor's rights confirmation lawsuit is that the disputed creditor's rights are either confirmed by the people's court or not confirmed. What is the effect of the judgment in the litigation of creditor's rights confirmation? This is a very important legal issue in the litigation of creditor's rights confirmation. China's enterprise bankruptcy law is not clear about this, and there are legislative loopholes, which must be clarified through judicial interpretation. 1. The effect of the judgment of the creditor's right confirmation litigation on the creditor. After the judgment of creditor's rights confirmation litigation takes effect, it first has legal effect on the creditors involved in the litigation and is bound by the judgment. If the dissenting creditor wins the case, its creditor status will be determined, and the creditor will naturally enjoy the rights granted to the creditor by law, including applying to the administrator to correct the wrong records in the creditor's rights table according to the creditor's rights confirmed in the judgment, attending the creditors' meeting, exercising the right to vote, participating in the distribution of bankruptcy property and obtaining the distribution amount advanced by the administrator. If the dissenting creditor loses the case, its creditor's rights will be determined according to the amount claimed by the dissenting party, or even lose its creditor's status. If the disputed creditor's right is denied, the amount of distribution paid by the administrator for the disputed creditor's right shall be distributed among other creditors. In the case that individual creditors have objections to the other party's creditor's rights recorded in the creditor's rights table and file a confirmation lawsuit, if the bankruptcy property benefits from the court's judgment, it may request the bankruptcy property to compensate its litigation costs within the limits of interests. After the judgment of creditor's rights confirmation litigation takes effect, it has legal effect not only on the creditors involved in the litigation, but also on all other creditors, and is bound by the judgment. Because, the winner of the creditor's rights confirmation lawsuit has the right to apply for correction of the creditor's rights table according to the judgment result of the people's court, and the creditor's rights table has the same effect as the effective judgment for all creditors. Otherwise, there will be distribution confusion. 2. The effect of the judgment of creditor's rights confirmation litigation on the debtor According to the design of the creditor's rights confirmation litigation system in China's Enterprise Bankruptcy Law, no matter what type of creditor's rights confirmation litigation, the debtor participates in the litigation as a party, either as a plaintiff, a defendant or a co-defendant. Since the debtor itself is a litigant, it should of course be bound by the judgment of creditor's rights confirmation litigation. If the disputed creditor's rights are confirmed by the judgment of the people's court, the status of the creditor shall be recognized; If the disputed creditor's rights have not been confirmed by the judgment of the people's court, whether in the process of reorganization, reconciliation or bankruptcy liquidation, their debt burden can be exempted according to law. 3. The effect of the judgment of creditor's rights confirmation litigation on the administrator According to Article 58 of China's Enterprise Bankruptcy Law, the administrator cannot directly file a lawsuit as a plaintiff, nor can he respond as a defendant, that is, he is not a party to the creditor's rights confirmation litigation. Although the administrator is not a party to the creditor's rights confirmation lawsuit, the judgment of the creditor's rights confirmation lawsuit has the same effect as the administrator.