走進澳洲 | 清算 Liquidation
Last week’s article provided our readers with an outline of:i. the process of voluntary administration,ii. the role of the administrator,iii. the rights of creditors during the course of administration, andiv. the possible outcomes of voluntary administration.接管程序的一個結果是公司進入清算程序。如果采取這種措施，除非另作決議，否則接管人將成為清算人。One outcome of administration is for the company to enter into liquidation, if this course of action is taken, and unless resolved otherwise, the administrator will ordinarily become the liquidator.本文的第一部分將試圖讓讀者了解清算的目的和過程，第二部分將深入探討債權人的權利。Part 1 of this article will then seek to provide readers with an understanding of the purpose and process of liquidation, whilst part 2 will delve into the rights of creditors.
Liquidation of an insolvent company
清算的目的是，讓一個獨立于破產公司事務的有資質的人，來控制和清算該公司。與破產接管人非常相似，清算人的目標是為所有債權人提供一個公平的結果。The purpose of liquidation is for a duly qualified person, independent of the affairs of the insolvent company, to take control and wind up its affairs. Much like the administrator, the liquidator aims to provide a fair result to all creditors.As with the process of administration, there are two types of liquidation:i. creditors’ voluntary liquidation, andii. court ordered liquidation.?確定是否進行了有優惠的或不公平的付款，且可追回此類付款;?調查涉及公司事務的代表、董事、員工或其他人員可能犯下的罪行，并向ASIC報告這些罪行;The Liquidator’s duty is towards all creditors of the company and includes:? Investigate the company’s affairs and report to the creditors;? To assess whether any possible claims may be made against the company’s directors;? To ascertain as to whether any uncommercial transactions have been made and for such transactions to be set aside;? To determine whether any preferential or unfair payments were made and recoverable;? To enquire into possible offences by representatives, directors, employees or other persons who are involved in the company’s affairs and to report such offences to ASIC;? To collect, protect and realise the company’s assets;? To distribute the realised assets of the company to the creditors; and? To apply for the deregistration of the company.注意：如果在清算期間，清算人懷疑有犯罪行為，則清算人應通過ASIC基金進一步調查，或向ASIC報告，以便進行刑事調查。NOTE: If during the course of liquidation, the liquidator suspects offences may have been committed, the liquidator is to either further investigate the matter with ASIC funding or to report to ASIC for criminal investigations to be conducted.
Preferential payments, unfair payments在清算開始前的六個月內如發生下列情形，為所有債權人的共同利益，清算人有能力追討公司向個別債權人支付的某些款項：2. 比其他債權人提前收到債務(或部分債務)的還款。A liquidator has the ability to recover, for the benefit of all creditors, certain payments made by the company to individual creditors. If during a six-month period prior to the start of liquidation:i. the company is insolvent or that the creditor suspects the company is insolvent, andii. receives payment of their debt (or part of it) ahead of other creditors.認定付款屬于不公平或有優惠的標準是，付款必須使債權人處于比其他無擔保債權人更有利的地位。In order for these payments to be deemed an unfair and preferential payment, the payment must have placed the creditor in a more favourable position than other unsecured creditors.清算人的清算成本排在資金分配的第一順位。如果有剩余資金，則支付給有擔保債權人、有優先權的無擔保債權人(雇員)，最后支付給其他無擔保債權人和股東。3. 拖欠的員工休假補償金（例如，未修完的年休假、病假或長期服務假期津貼）；The liquidator is entitled to the payment of its costs prior to any payments are made to the creditors. If there are funds left over, then payments are made to secured creditors, unsecured creditors with priority (employees), and finally to other unsecured creditors and shareholders.Generally, the order in which funds are distributed is:1. costs and expenses of the liquidation, including liquidators’ fees2. outstanding employee wages and superannuation3. other outstanding employee benefits such as annual leave, sick leave, long service leave,4. employee retrenchment payments,5. unsecured creditors, and在上一個分類中的債權人均已獲得償付后，才能對后一順序分配資金。如果沒有足夠的資金全額支付一個類別，那么可用的資金將按比例支付。We note that each category of creditors is to be paid prior to any dividends are made available to the next. If there are insufficient funds to pay a category in full, then the available funds are paid on a pro rata basis.發生債務違約時，有擔保債權人的權利與無擔保債權人不同。有擔保債權人是指，那些對公司部分或全部資產擁有擔保權益，以擔保公司所欠債務的人。這種擔保權益通常是抵押或質押的形式。We note however that the rights of secured creditors differ from those of unsecured creditors when it comes to debt defaults.A secured creditor is someone who has a security interest over some or all of the company’s assets, to secure a debt owed by the company. This security commonly takes the form of a mortgage or charge.公司違反其擔保物權項下的義務，有擔保債權人有權指定獨立的接管人出售部分或全部擔保資產，以償還債務。If a company defaults on its obligations under a security interest, secured creditors have the right to appoint an independent receiver to sell some or all of the charged assets to allow the repayment of the debt.如果接管人已指定且已兌現的金額不能完全清償債務，則有擔保的債權人有權：If a receiver has been appointed and the amount realized cannot fully repay the debt, then a secured creditor is entitled to:?vote at creditors’ meetings for the amount of the shortfall;?participate in any dividend to unsecured creditors on a similar basis.關于債權人類型及其權利的細節將在本文的第2部分中討論。Specifics in relation to the type of creditors and their rights will be discussed in Part 2 of this article.Conclusion of liquidation將公司的資產全部變現和分配，并向ASIC提交適當的報告后，清算程序及清算人的作用才算結束。The process of liquidation and the role of the liquidator comes to an end after the company’s assets has been fully realised and distribute, with the appropriate reports made to ASIC.在自愿清算中，清算人必須召開最后一次聯席會議，并在會議中說明清算的過程，以及公司財產是如何處置的。最后一次會議的通知提交給ASIC后，公司將在三個月后自動注銷。在法院下令清算的情況下，不需要召開最后一次會議。一旦清算人決定公司的事務已完全清算，他們可:3. 在沒有足夠的資產來獲得注銷公司的法院裁定的情況下,要求ASIC注銷公司。In a voluntary liquidation, the liquidator must hold a final joint meeting accounting for how the liquidation has been conducted and how company property has been disposed of. A notice of this final meeting is to be lodged with ASIC and the company will be automatically deregistered after a further three months period.In a court ordered liquidation, this final meeting is not required to be held. Once the liquidator decides that the company’s affairs have been fully wound up, they may:? seek an order for release from the court? seek an order for release and that ASIC deregister the company, or? if there are insufficient assets to obtain a court order for the company’s deregistration, request that ASIC deregister the company.A company ceases to exist after it has been deregistered.以上是關于清算的第一部分。第二部分將重點介紹債權人的類型及其權利。This concludes part 1 of this article. Part 2 will focus on the type of creditors and their rights.
通過與從事雙邊貿易和跨境投資的中澳跨國公司長期合作，我們擁有豐富的法律服務經驗。Whether you are seeking to establish a local Australian subsidiary or acquiring an interest in an Australian company or asset, Wincon – JYC Law Group’s Australia Legal Team provides an integrated end to end solution to Chinese investors. Our experience comes from a history of working with Chinese and Australian multinationals engaged in bilateral trade and cross border investments.