ញត្តិក្ស័យធនប្រឆាំងនឹងកូនបំណុល៖ លក្ខខណ្ឌនីតិវិធីនិងថ្លៃដើម

As a creditor you can ask the district court to declare a non-paying debtor bankrupt (faillissement), and for an undisputed claim this is often faster and cheaper than ordinary collection proceedings. The exception: the court only grants the petition if the debtor has stopped paying and you can show there is at least one other creditor, at least one of whose claims is due and payable.

ហេតុអ្វីបានជាត្រូវដាក់ពាក្យស្នើសុំក្ស័យធនរបស់កូនបំណុល?

A bankruptcy petition increases the chance that your claim is paid, at least in part. Many debtors pay once a petition is served, and if they do not, a liquidator (curator) sells what the company still holds, such as stock, receivables or property, under the Bankruptcy Act (Faillissementswet).

The petition must be filed by មេធាវី. The district court (rechtbank) usually decides at the hearing itself or shortly after it.

តើអ្នកអាចដាក់ពាក្យស្នើសុំក្ស័យធននៅពេលណា?

You can ask the court to declare your debtor bankrupt if the debtor has stopped paying and owes two or more debts to different creditors, at least one of which is due and payable. Your own claim must also be established in a summary way; a claim the debtor disputes on solid grounds is not suitable.

The need for more than one creditor is called the plurality requirement (pluraliteitsvereiste). Other creditors do not need to join the petition. You usually show plurality with a supporting claim (steunvordering) from another creditor, such as an unpaid supplier, landlord or the Tax Administration (Belastingdienst), or with the debtor’s own admission that it pays nobody.

តើនីតិវិធីដំណើរការយ៉ាងដូចម្តេច?

Your lawyer files a petition (verzoekschrift) with the district court of the area where the debtor is domiciled or has its registered office. Before filing you will normally have sent the debtor reminders and a formal notice of default.

The court schedules a hearing, usually within about six weeks of filing, and notifies the debtor. If several creditors file, the court deals with the oldest valid petition first. The debtor can defend itself in writing or orally at the hearing.

តើមានអ្វីកើតឡើងនៅក្នុងសវនាការ?

The hearing is not public. You and your lawyer must attend, or the court can reject the petition; the debtor does not have to attend, and if it stays away the court can declare it bankrupt by default.

The petitioner can ask for the hearing to be postponed, according to the Judiciary (rechtspraak.nl) up to four times within eight weeks, for example when the debtor proposes a payment plan. The court can also decide without a hearing if both parties agree in writing.

តើញត្តិសុំក្ស័យធនត្រូវចំណាយអ្វីខ្លះ?

You pay your lawyer’s fee and the court fee (griffierecht) for the petition. The court fee is a fixed amount set by the Court Fees Act (Wet griffierechten burgerlijke zaken); it differs for companies and private individuals and is adjusted regularly, so check the current rate on rechtspraak.nl before filing.

What if the request is rejected or granted?

If the court rejects your petition, you can appeal to the court of appeal (gerechtshof) within eight days of the ruling, through a lawyer. A debtor declared bankrupt by default can file an objection (verzet) with the same court within 14 days; a debtor who was heard can appeal to the court of appeal.

If the court grants the petition, the debtor is bankrupt immediately, even if it appeals. The court appoints a liquidator (curator) and a supervisory judge (rechter-commissaris), and the court registry enters the bankruptcy in the public bankruptcy register and the Central Insolvency Register (Centraal Insolventieregister); it is also announced in the Government Gazette (Staatscourant).

តើមានអ្វីកើតឡើងនៅពេលដែលការក្ស័យធនត្រូវបានអនុម័ត?

From the declaration, the debtor loses the right to manage and dispose of its assets; only the liquidator can act for the estate. The liquidator winds up the estate for all creditors and needs the supervisory judge’s permission for steps such as dismissing staff or selling business assets.

Income the debtor receives during the bankruptcy as a rule falls into the estate. For a private individual, basic necessities and part of the income stay outside it; the debtor can still enter into ordinary transactions, but they do not bind the estate.

The supervisory judge oversees the liquidator and, together with the liquidator, organises the verification meeting (verificatievergadering) at the court, where the list of claims is established. On the liquidator’s recommendation the supervisory judge can also ask the court to detain the bankrupt party or have witnesses heard.

តើទ្រព្យសម្បត្តិរបស់អចលនវត្ថុត្រូវបានចែកចាយយ៉ាងដូចម្តេច?

The liquidator pays creditors in order of rank, and your rank depends on the type of claim. The estate’s own costs come first, including the liquidator’s fee and rent or wages that fall due after the bankruptcy date.

What remains goes to preferential claims, such as tax and social security debts, then to unsecured (ordinary) creditors and only after that to subordinated creditors. A surplus goes to the shareholders of a B.V. or N.V. or to the bankrupt individual, but in practice unsecured creditors are often left with little or nothing.

What is a secured (separatist) creditor?

A separatist holds a mortgage right (hypotheekrecht) on property or a right of pledge (pandrecht) on, for example, stock or receivables. A separatist can usually enforce its security directly, outside the bankruptcy.

The liquidator can give a separatist a reasonable period to enforce. The supervisory judge can also order a cooling-off period (afkoelingsperiode) of at most two months, which can be extended once by up to two more months, during which the separatist may not enforce without permission.

What are the consequences for you as a creditor?

• You can no longer seize the debtor’s assets yourself.
• You submit your claim, with supporting documents, to the liquidator.
• The final list of claims is established at the verification meeting.
• You are paid according to your rank, if funds remain.
• Against a natural person, a remaining debt can in principle still be pursued after the bankruptcy ends.

For a natural person the court can, on request, convert the bankruptcy into the statutory debt restructuring scheme (schuldsaneringsregeling, WSNP). The debtor then loses control of the assets except basic necessities, and post addressed to the debtor goes to the liquidator.

តើការក្ស័យធនបញ្ចប់ដោយរបៀបណា?

• Liquidation for lack of assets, when the estate cannot pay more than its own costs.
• A composition (akkoord), in which the debtor pays creditors an agreed percentage in exchange for release from the rest.
• Closure once the final distribution list becomes binding.
• A court of appeal ruling that overturns the bankruptcy.
• Termination at the request of a natural person combined with admission to the WSNP.

After a bankruptcy of a natural person in which a verification meeting took place, the official record of that meeting can serve as an enforceable title, so you do not need a new judgment. What you can realistically recover still depends on the debtor’s assets.

ចុះបើកូនបំណុលមិនសហការ?

The debtor must give the liquidator all relevant information (inlichtingenplicht). If the debtor obstructs the liquidator, the supervisory judge can have the debtor questioned or the court can order detention.

If the debtor carried out acts before the bankruptcy that it was not obliged to do and that disadvantaged creditors, the liquidator can annul them (faillissementspauliana), provided the debtor knew or should have known of that disadvantage. Where directors mismanaged the company, the liquidator can also hold them personally liable; see our article on ទំនួលខុសត្រូវរបស់នាយកនៅហូឡង់.

What should you check as a creditor before filing?

• That your claim is undisputed and supported by invoices, the contract and reminders.
• That you have at least one supporting claim from another creditor, with evidence.
• Whether the debtor still has assets, so that filing is worth the cost.
• Whether you hold security, such as a pledge or retention of title, that you can invoke yourself.
• That you can attend the hearing with your lawyer on the date set.

What should you check as a debtor facing a petition?

• Whether the claim is really due, or whether you have substantive grounds to dispute it.
• Whether the creditor can show a supporting claim from another creditor.
• Whether you can pay or offer a payment plan before the hearing.
• The hearing date, so that you can put forward your defence.
• The 14-day objection deadline if you are declared bankrupt by default.

What can we do for you with a bankruptcy petition?

We act for creditors and debtors in bankruptcy proceedings; more about our work is on our មេធាវីក្រុមហ៊ុន ។

• We assess whether your claim and the supporting claims meet the requirements.
• We draft and file the bankruptcy petition with the district court.
• We represent you at the hearing and negotiate a payment plan where possible.
• We defend a debtor against a petition or file an objection or appeal within the deadline.
• We submit your claim to the liquidator and follow up at the verification meeting.

សេចក្តីសង្ខេប

• A bankruptcy petition can be a faster, cheaper way to collect an undisputed claim than ordinary proceedings.
• The court only grants it if the debtor has stopped paying and there is more than one creditor (plurality requirement).
• A rejected petition can be appealed within eight days; a debtor declared bankrupt by default can object within 14 days.
• A liquidator takes over the assets under a supervisory judge, and creditors are paid by rank; separatists can usually enforce directly.
• A bankruptcy ends through lack of assets, a composition, a binding distribution list or an appeal.

សំណួរ​ដែលគេ​ច្រើន​សួរ