Bankruptcy Proceedings in Thailand Part II 泰國破產程序 第二篇
Effect of a receivership order 破產接管的效力
When the court orders receivership whether which is temporarily or completely, it will have the effect following:
1. Transfer the possession of the debtor's property to the authority of the Receiver.
2. The administrative power of the debtor's property business rests solely with the Receiver.
3. The debtor has the following duties:
3.1 The debtor shall, upon knowledge of the receivership order, deliver all property, seals,
account books and documents related to his property and business which are in his possession to
the Receiver (Section 23).
3.2 Must attends every creditors meeting or go to the Official Receiver to investigate the summons and answer the questions posted by the Receiver Creditors Committee or any creditor in connection with the debtor’s business, property or partner (Section 64) (this except for temporary receivership order).
3.3 Must request the Official Receiver to determine the amount as his own and his family’s living expenses as appropriate to his status (Section 67 (1)).
3.4 Every time the debtor is entitled to any property, he must report to the Receiver within a reasonable time (Section 67 (2)).
4. The debtor is limited in certain aspects such as:
4.1 The debtor has no power to act in connection with his/her property or business, unless the act is done according to the order or approval of the court, Official Receiver, the property manager or a meeting of creditors, as provided by the Bankruptcy Law (Section 24).
4.2 The debtor has no power to take civil cases in connection with the property. The Receiver will act instead (Section 25).
4.3 The debtor cannot leave the Kingdom unless receiving written permission from a court or an escort officer (Section 67 (3)).
4.4 The debtor has no right to receive loans from any other person in the amount of one hundred baht upwards without informing such person that the debtor is under receivership or is bankrupt (Section 165 (1)).
Composition in bankruptcy 破產和解
1. Composition Before bankruptcy-破產前和解
When the court ordered receivership, if the debtor wishes to apply for compounding before bankruptcy, the law requires the debtor to submit an application to the Receiver within 7 days from the date of submission of the clarification on business and property under Section 30, and may ask the protector to schedule a new time. When the creditors have passed a special resolution accepting the debtor’s proposal for a composition of debts, the debtor or the Receiver is entitled to apply to the Court for an order approving or disapproving it (Section 49). The composition in satisfaction of debts accepted by the meeting of creditors and approved by the Court binds all creditors with regard to the debts for which applications for repayment thereof are permissible but does not bind any creditor with regard to the debts from which the debtor may not, in accordance with this Act, be discharged by an order of discharge from bankruptcy, unless such creditor has consented to the composition in satisfaction of debts (Section 56).
法院下達破產命令時，如債務人希望在破產前申請和解，本法要求債務人根據第30條提交營業和財產澄清之日7天內向破產管理人提出申請，要求管理人安排新的時間。當債權人通過一項特別決議，接受債務人提出的債務和解建議，債務人或官方接管人有權向法院申請同意該和解的命令 (第49條)。滿足債權人會議並經法院批准的債務和解對允許應償還的債務具有約束力，對所有債權人具有約束力，但根據本法對債務人可能不承擔的債務不具有任何債權人的約束力，可以通過破產解除令解除，除非債權人同意債務返還 (第56條)。
2. Composition After bankruptcy-破產後和解
If the debtor’s previous proposal for a composition in satisfaction of debts failed to achieve a successful result, the debtor shall not propose a composition in satisfaction of debts within the period of three months as from the date on which the last composition in satisfaction of debts failed to achieve a successful result.
If the Court approves the composition in satisfaction of debts, the Court has the power to issue an order cancelling the bankruptcy and restoring the debtor’s power to manage his property or may issue any other order as it deems appropriate (Section 63).
How to obtain debt repayment in a bankruptcy case 如何在破產案件取得返還債務
A creditor intending to have repayment of debt in a bankruptcy action, whether the plaintiff creditor or not, must submit an application therefor to the Receiver within two months as from the date of the publication of the absolute receivership order. But, if the creditor is outside the Kingdom, the Receiver may grant an extension of time for a period not exceeding two months (Sections 91).
Property for Repayment of Debt 償還債務的財產
The following property shall be deemed the property, in a bankruptcy action, distributable amongst creditors under Section 109:
1. All the property which the debtor has at the time of commencement of the bankruptcy, including claims exercisable over other persons’ property, except:
1.1 Personal usage and necessary for living for the debtor, the debtor's spouse and minor children with reasonable conditions in life.
1.2 Animals, plants, tools and items for the debtor's occupation. The total price is not more than one hundred thousand baht.
2. Property which the debtor acquired after the start of bankruptcy up to the time of discharge from bankruptcy. It refers to the assets acquired after the court's receivership order until the bankruptcy case is over.
3. Possession or authority or order the disposal of debtors in the trade or the debtor's business with the consent of the true owner by circumstances, that show that the debtor is the owner at the time the debtor is asked to bankrupt.
Cancellation of bankruptcy 解除破產
Cancellation from bankruptcy is cancellation of an existing bankruptcy away from the debtor or the bankrupt. As a result, the debtor is no longer required to be a bankrupt. Discharging from bankruptcy is one way to end the bankruptcy case. There are 2 cases of discharge from bankruptcy:
1. The Court shall issue an order of discharge under Section 71.
2. A natural person adjudged bankrupt shall forthwith be discharged from bankruptcy upon the lapse of the three-year period as from the date of the adjudication of bankruptcy under Section 81/1.
Consequences of cancellation bankruptcy 解除破產的結果
The order of discharge from bankruptcy has the effect of discharging the bankrupt from all debts of which applications for repayment are permissible, except:
1. Debts in relation to taxes, duties or goods taxes levied by the Government or a municipality.
2. Debt arising from dishonesty or fraud of the bankrupt or debts for which the creditors’ failure to make a claim is attributable to dishonesty or fraud in which the bankrupt has involvement or conspiracy (according to Section 77).
3. However, the court's order of discharge from bankruptcy has no effect of discharging from liability persons who are the bankrupt’s partners or bear joint liability together with the bankrupt or stand surety for or are in the same position as the surety for the bankrupt as well (according to Section 78).
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