专业团队

    （一）破产程序的启动

　　根据新破产法规定，下列三种情形，法院同意受理后，可启动破产程序：

　　第一，企业不能清偿到期债务而被债权人向法院申请企业破产的；

　　第二，企业因资不抵债而主动向法院主动申请破产的；

　　第三，企业法人已解散但未清算或者未清算完毕，资产不足以清偿债务的，依法负有清算责任的人向法院申请破产清算的。

　　如果向法院提交破产申请，法院不同意受理或驳回申请的，可向上一级法院上诉。

（二）破产程序启动的法律后果

　　根据新破产法规定，破产程序一旦启动，将产生如下法律后果：

　　1、未履行完毕的合同，管理人有权决定解除或继续履行。

　　管理人对破产申请受理前成立而双方均未履行完毕的合同，有权决定解除或者继续履行，并通知对方当事人。管理人自破产申请受理之日起二个月内未通知对方当事人，或者自收到对方当事人催告之日起三十日内未答复的，视为解除合同。管理人决定继续履行合同的，对方当事人应当履行；但是，对方当事人有权要求管理人提供担保。管理人不提供担保的，视为解除合同。

　　2、财产保全措施被解除，未结案件被中止

　　进入破产程序后，有关破产企业的财产保全措施应当解除，执行程序应当中止；未审结的民事诉讼或者仲裁应当中止；在管理人接管财产后，该诉讼或者仲裁继续进行。

（1） Initiation of bankruptcy proceedings

According to the new bankruptcy law, bankruptcy proceedings can be initiated after the court agrees to accept the following three situations:

Firstly, if a company is unable to repay its due debts and is applied for bankruptcy by creditors to the court;

Secondly, if a company voluntarily applies for bankruptcy to the court due to insolvency;

Thirdly, if the enterprise legal person has been dissolved but has not been liquidated or has not been fully liquidated, and its assets are insufficient to repay its debts, the person who is legally responsible for liquidation shall apply to the court for bankruptcy liquidation.

If a bankruptcy application is submitted to the court and the court does not agree to accept or reject the application, an appeal can be made to the higher-level court.

（2） Legal consequences of initiating bankruptcy proceedings

According to the new bankruptcy law, once bankruptcy proceedings are initiated, the following legal consequences will arise:

1. The manager has the right to decide whether to terminate or continue to perform the unfulfilled contract.

The administrator has the right to decide whether to terminate or continue to perform a contract that was established before the acceptance of the bankruptcy application but has not been fully performed by both parties, and notify the other party. If the administrator fails to notify the other party within two months from the date of acceptance of the bankruptcy application, or fails to respond within thirty days from the date of receipt of the other party's reminder, the contract shall be deemed terminated. If the manager decides to continue performing the contract, the other party shall perform it; However, the other party has the right to request the administrator to provide guarantees. If the manager fails to provide guarantees, it shall be deemed as termination of the contract.

2. Property preservation measures have been lifted, and outstanding cases have been suspended

After entering bankruptcy proceedings, the property preservation measures related to the bankrupt enterprise should be lifted, and the execution procedures should be suspended; Civil litigation or arbitration that has not been concluded shall be suspended; After the administrator takes over the property, the lawsuit or arbitration continues.