Chai asked in 政治及管治法律及道德 · 1 decade ago

關於法律,中譯英,請有關專業人仕幫忙!

《中华人民共和国破产法》第三十一条规定,法院受理破产申请前一年内,被申请破产的公司涉及无偿转让,以明显不合理的价格进行交易或放弃债权的行为,管理人有权请求法院予以撤销。《中华人民共和国破产法》第三十二条规定,法院受理破产申请前六个月内,被申请破产公司在不能清偿到期债务,并且资产不足以清偿全部债务或者明显缺乏清偿能力的情形,仍对个别债权人进行清偿的,管理人有权请求人民法院予以撤销。欠款抵销协议书安排的实质是,TTT以其对ZZZ应收款换取其对HTT的应收款。以HTT现时的处境和财务状况,TTT进行前述交易对TTT(包括其债权人)明显不利。因为TTT显然可以向ZZZ全额收取货款,但进行前述交易(即ZZZ给予一定的折扣)后,却难以要求HTT清偿债权,交易(包括交易价格)明显不合理。因此,欠款抵销协议书有可能基于上述法律规定,日后被TTT的管理人请求法院予以撤销。

《中华人民共和国合同法》第七十四条规定,债务人以明显不合理的低价转让财产,对债权人造成损害,并且受让人知道该情形的,债权人可以请求法院撤销债务人的行为。基于上述分析原因,即使TTT不进入破产清算程序,亦存在TTT的债权人依据合同法的规定,以TTT以明显不合理的低价(即ZZZ转让的、对HTT的债权)转让其应收ZZZ的应收款(被视为TTT的财产)要求法院撤销欠款抵销协议书的风险。

欠款抵销协议书涉及的外汇问题

中国现时仍实行外汇管制制度,欠款抵销协议书的安排实际上涉及TTT和ZZZ的非贸易结汇和售付汇问题。以欠款抵销协议书涉及的交易金额,欠款抵销协议书实质上涉及的结汇或售付汇需要中国国家外汇管理局审核批准有关结汇或售付汇事项。如果不能取得中国国家外汇管理局的批准,中国法院有可能以下述理由,认定欠款抵销协议书无效:第一,欠款抵销协议书直接违反了外汇管理条例中的结汇和售付汇规定(即违反中国法律、法规规定的合同无效,外汇管理条例中包含结汇和售付汇的概括性规定,属于中国的法规类别);第二,非贸易结汇和售付汇的规定即使属于行政规章,不属于中国法规,因为中国是实行外汇管制的国家,违反中国外汇管理制度构成损害中国的社会公共利益,法院有可能以此认定欠款抵销协议书无效。

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  • 1 decade ago
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    "People's Republic of China Bankruptcy law" the 31st stipulation, the

    court accepts before the bankrupt application in a year, applies the

    company which goes bankrupt to involve the free transfer, carries on

    the transaction or the giving up creditor's rights behavior by

    obviously the unreasonable price, the supervisor is authorized to

    requested the court abolishes. "People's Republic of China Bankruptcy

    law" the 32nd stipulation, the court accepts before the bankrupt

    application six months, applies the bankrupt company in not to be able

    to pay off the due debt, and the property is insufficient to pay off

    the complete debt or obvious deficiently pays off the ability the

    situation, still carried on to few creditors pays off, the supervisor

    was authorized to requested the people's court abolished. The debt

    offsets the agreement arrangement the essence is, TTT should receive

    money by it to ZZZ receives in exchange for it to be supposed to

    receive money to HTT. Front by the HTT present situation and the

    financial condition, TTT carries on obviously states the transaction

    (including its creditor) to be disadvantageous to TTT. Because TTT

    obviously may gather the loans to the ZZZ sum total front, after but

    carries on states the transaction (namely ZZZ to give certain

    discount), actually with difficulty requests HTT to pay off the

    creditor's rights, the transaction (including transaction price) is

    obviously unreasonable. Therefore, the debt offsets the agreement to

    have the possibility based on the above legal rule, by the TTT

    supervisor was requested in the future the court abolishes.

    2008-03-31 17:58:47 補充:

    "People's Republic of China Contract Law" the 74th stipulation, the

    debtor by obviously the unreasonable low price transfer property,

    creates the harm to the creditor, and the grantee knew this situation,

    2008-03-31 17:59:14 補充:

    the creditor may request the court abolishes debtor's behavior. Based

    on above analysis reason, even if TTT does not enter the bankruptcy to

    criticize the procedure, also has TTT the creditor rests on the

    contract method stipulation, by TTT by obviously the unreasonable low

    2008-03-31 17:59:40 補充:

    price (namely the ZZZ transfer, to the HTT creditor's rights)

    transfers its receivable ZZZ to be supposed to receive money (is

    regarded as TTT the property) to request the court cancellation debt

    to offset the agreement the risk.

    The debt offsets the foreign exchange question which the agreement

    involves

    2008-03-31 17:59:55 補充:

    China's now still practiced the foreign exchange control system, the

    debt offsets the agreement the arrangement to involve TTT and the ZZZ

    non- trade settlement of exchange in fact and sells pays collects the

    question. To the debt offsets the transaction amount which the

    2008-03-31 18:00:29 補充:

    agreement involves, the debt offsets the settlement of exchange which

    in the agreement essence involves either sells pays collects needs the

    2008-03-31 18:00:46 補充:

    State Foreign Exchange Administration of China verification

    authorization related settlement of exchange or sells pays collects

    the item. If cannot obtain State Foreign Exchange Administration of

    2008-03-31 18:01:05 補充:

    China the authorization, the Chinese court has the possibility by the

    following reason, recognized the debt offsets the agreement invalid:

    First, the debt offset the agreement directly to violate in the

    2008-03-31 18:01:17 補充:

    exchange control rule settlement of exchange and to sell pays collects

    the stipulation (namely to violate the Chinese law, laws and

    regulations stipulation contract is invalid, in exchange control rule

    contained concise quality which settlement of exchange and sold pays

    2008-03-31 18:01:25 補充:

    collects to stipulate, belonged to Chinese the laws and regulations

    category); Second, the non- trade settlement of exchange and sells the

    stipulation which pays collects even if belongs to the administrative

    rules and regulations, does not belong to the Chinese laws and

    2008-03-31 18:01:30 補充:

    regulations, because China is implements the foreign exchange control

    the country, violates the China exchange control system constitution

    to harm Chinese the social public interest, the court has the

    possibility to this to recognize the debt offsets the agreement to be

    invalid.

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