After Covid – 19, enterprises accelerate and strive to revive the production business soon. However, there are also many enterprises facing the difficulty of not being able to recover and carry out the illegal dissolution of the business to evade the obligation to pay the debt (“Debtor“). The dissolution of the enterprise without payment of debts has seriously affected the creditors of the business (“Creditors“). Therefore, the question is whether the Creditor’s desire to recover the debt to the dissolved Debtor is feasible or not? Through this article, TNTP provides legal perspectives to help Creditors ensure rights and interests, and sue for the Debtor to have dissolved but not paid the debt.
1. Legal conditions for enterprises to dissolve
First, we need to find out the conditions for dissolving legitimate enterprises. Clause 2, Article 207 of Law on Enterprise 2020 stipulates: “Enterprises may only be dissolved when ensuring the payment of all debts and obligations of other assets and not in the process of settling disputes in Courts or Arbitration. The relevant manager and the enterprise specified in Point d Clause 1 of this Article are jointly responsible for the debts of the enterprise.“
Specifically, enterprises need to ensure the rights of relevant people, including but not limited to employees of enterprises, Creditors, business partners, and state agencies,…
Whether the enterprise is voluntarily or forcibly dissolved, it must meet this condition to be dissolved, otherwise, the enterprise will not be able to cease operations by dissolution procedure. However, in fact, many Debtors have dissolved but have not met the above conditions, have not paid their debts, and deliberately failed to declare outstanding debts when making dissolution dossiers in order to evade debt repayment obligations. As such, the dissolution dossier does not guarantee honesty, accuracy, and legality.
2. Can the debt be claimed when the Debtor has declared dissolution?
Currently, many Creditors are worried about how to manage when the Debtor has dissolved without paying the debt. One question is, “Will it be possible to claim the debt when the Debtor is the enterprise that has declared dissolution ?“
Our opinion is as follows:
– Pursuant to Clause 3, Article 210 of the Enterprise Law 2020: “In case the dissolution dossier is not accurate or forged, the persons specified in Clause 2 of this Article must jointly be responsible for the payment of the rights of unresolved employees, unpaid tax amounts, other unpaid debts and take personal responsibility before law for the consequences arising in the case. the period of 05 years from the date of submission of the enterprise dissolution dossier to the enterprise’s registration agency”;
– Whereby, the members of the enterprise specified in Clause 2, Article 210 of the Law on Enterprise 2020 include: “Members of the Board of Directors of joint-stock companies, members of the Board of Members of limited liability companies, company owners, private business owners, directors or general directors, partnership members and legal representatives of enterprises shall be responsible for the truthfulness and accuracy of the enterprise dissolution dossiers”;
– Besides, Clause 1, Article 288 of the Civil Code 2015 stipulates the obligation of solidarity between the parties “The obligation of solidarity is an obligation performed by many persons together and the right party can request any of those who are obliged to fulfill the full obligation. ” In this case, the boss managers of the Debtor must jointly take responsibility for the debts.
From the above grounds, the Creditor who has not been paid when the Debtor has been dissolved fully has the right to request individuals holding key positions of the Debtor specified in Clause 2, Article 210 of the Law on Enterprise 2020 for a period of 05 years, from the date the Debtor submits the dissolution dossier.
The creditor may ask the Debtor to pay the full debt. In case the Debtor fails to pay, the Creditor may initiate a lawsuit to the competent dispute settlement agency to request the protection of his/her legitimate rights and interests. In addition, in case the debtor has been dissolved but still has unpaid debts, the party with related obligation interests may complain to the competent state agency about the illegal dissolution of the Debtor.
3. Note to collect information on the heads of the Debtor responsible enterprises.
Many enterprises when establishing and conducting transactions with partners are only interested in the legal representative but invisibly do not have information about the head manager of the enterprise (the person involved is responsible under Clause 2, Article 210 of the Law on Enterprise when the enterprise is dissolved).
In addition, if the partner dissolves without payment of the debt, we find that the Creditor will have more difficulty in the process of suing the Debtor if: (i) The Debtor hires a legal representative and has terminated the labor contract with the legal representative; or (ii) The legal representative is a person of foreign nationality who has returned his/her country.
Therefore, we note that, when the enterprise establishes and conducts transactions with any partner, it is necessary to try to collect more personal information, the addresses of the managers of the enterprise, in addition to the legal representative. Enterprise can also check information about partners at The Electronic Statement on the National Business Registration Portal page.
The above is to share the legal knowledge of TNTP on debt collection for the dissolved Debtor. Hope this article will help you.
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TNTP and Associates International Law Firm
Lawyer: Nguyen Thanh Ha