【线上云德】疫情期间律师说（七十五）∣疫情影响下与破产相关的法律问题

2020年新春伊始，一场席卷全国的新冠肺炎疫情仍未有消退之势，疫情对全国人民的正常生活、各地企业的正常经营均造成严重影响。全国各企业的情况呈现出不同的发展趋势，其中部分已申请破产企业利用危机寻求重整出路，似有复活迹象，但也有部分中小企业由于持续停工、经济负担过重，面临疫情结束后申请破产，针对上述不同企业面临的与破产相关的法律问题，本律师在此予以剖析。

为做好新冠疫情防控工作，助力企业渡过难关，全国各地法院自2020年1月底陆续出台相关举措，针对中小企业面对疫情出台“护企暖企”方面的措施，同时也对正在申请破产的企业可能面临的相关法律问题出台相关规定予以明确。

At the beginning of the New Year in 2020, an epidemic of that swept across the country has not abated, and the epidemic has seriously affected the normal life of the Chinese people and the normal operation of enterprises in various regions. Of the enterprises all over the country presents different trends, some of them have filed for bankruptcy enterprises using the crisis to seek reforming ways, as there were signs of revival, but there are also some small and medium-sized enterprises as the last shutdown, the economic burden is overweight, faced after the outbreak, filed for bankruptcy, according to the different companies face the legal issues associated with bankruptcy, the lawyer in this analysis.

To do a good job in the new epidemic prevention and control work, help enterprises to survive, courts across the country since the end of January 2020 rolled out relevant measures, aimed at small and medium-sized enterprises in the face of epidemic "protecting enterprise warm companies" aspects of measures, but also the enterprise may be faced to is filed for bankruptcy on related legal problems related to the regulation to be clear.

01：已申请破产企业在疫情之下“危”中有“机”

面对严峻的新冠疫情，有的企业遭受停工停产困境濒临破产，而部分已申请破产企业反因疫情物资、酒店紧缺的需要反而寻求到一线生机。已申请破产或宣告进入重整阶段的企业确因本次疫情因素暂时恢复生产，颇有受益，但从长远来看，在疫情结束后，上述企业受管理人接管，原企业股东会、董事会等管理机构已不再拥有经营权。如上述企业指定管理人为会计师事务所、律所等中介机构，其能否担负起企业在疫情结束后的日常管理责任也是需考虑的问题。

特别是，针对启动破产清算程序的企业，债务人无法按照破产重整的相关规定在管理人监督下自行管理财务和营业事务，企业未来的出路更需提前加以考虑。

In the face of severe new outbreak, some enterprises suffer from shutdown and production difficulties and are on the verge of bankruptcy, while some enterprises that have applied for bankruptcy have instead sought a lifeline due to the shortage of epidemic materials and hotels. The enterprises that have filed for bankruptcy or declared to enter the restructuring stage do benefit from the temporary resumption of production due to the factors of this outbreak. However, in the long run, after the outbreak, the above-mentioned enterprises will be taken over by the managers, and the original management institutions such as the board of directors and shareholders will no longer have the management rights. If the above-mentioned enterprises designate the managers as intermediary organizations such as accounting firms and law firms, it is also necessary to consider whether the managers can shoulder the daily management responsibilities after the outbreak.

In particular, for an enterprise that starts bankruptcy liquidation procedure, the debtor cannot manage its own financial and business affairs under the supervision of the administrator in accordance with the relevant provisions of bankruptcy reorganization, so the future outlet of the enterprise needs to be considered in advance.

02：濒临破产企业在疫情结束后的程序性问题

针对本次疫情影响下可能面临破产的企业，未来如拟进行正式破产申请，大致的流程如下：

(一)破产申请→由债权人或债务人自向法院申请破产；

(二)立案审查→法院做出是否受理的决定；

(三)案件受理→如果受理，法院应依法通知所有债权人；

(四)案件受理后的工作→债权的申报与登记；

(五)债权人会议→组成债权人会议，并就整顿与和解协议讨论；

(六)破产和解→如果达成和解协议，破产程序中止，公司继续经营；

(七)企业整顿→破产宣告→破产清算→裁定破产程序终结→企业注销登记。

针对疫情影响下与破产相关的法律问题，本律师建议在实践中应当结合各企业的具体行业类型、经营情况、负债能力及未来发展综合予以考虑。同时，务必对疫情影响下各政府部门、最高院及地方各级人民法院不时出台的与破产事项相关的政策、法规予以密切关注。

For enterprises that may face bankruptcy under the influence of this outbreak, the general procedures for formal bankruptcy application in the future are as follows:

1.Bankruptcy application → the creditor or debtor shall file for bankruptcy with the court;

2.Case filing examination → the court decides whether to accept the case;

3.Case acceptance → if the case is accepted, the court shall notify all creditors according to law;

4.The work after the case is accepted → the declaration and registration of claims;

5.Creditors' meeting → constitute a creditors' meeting and discuss the reorganization and reconciliation agreement;

6.Bankruptcy settlement → if a settlement agreement is reached, the bankruptcy proceedings will be suspended and the company will continue to operate;

7.Enterprise reorganization → bankruptcy declaration → bankruptcy liquidation → ruling on the end of bankruptcy proceedings → enterprise cancellation of registration.

In view of the legal issues related to bankruptcy under the influence of the epidemic, this lawyer suggests that the specific industry types, operating conditions, debt capacity and future development of each enterprise should be considered in practice. At the same time, we must pay close attention to the policies and regulations related to bankruptcy issues issued from time to time by various government departments, supreme courts and local people's courts under the influence of the epidemic.