Editor's Note: In the bankruptcy procedure, although the civil air defense project belongs to the national defense infrastructure, involving national security and public interests, the law does not give the ex situ construction fee a statutory priority. Based on the comprehensive analysis of the legislative principles and charging standards of the ex situ construction fee for civil air defense projects, it should be an administrative fee and a public law creditor's right, which should be recognized as an ordinary creditor's right, and its compensation order should be treated differently.

Bankrupt housing enterprises usually have developers who have not built civil air defense projects and are in arrears in paying the relocation fee for civil air defense projects to the government civil air defense office. As a known creditor, the government civil air defense office often declares the priority of compensation, priority of compensation and ordinary creditor's rights in the process of declaring the cost of civil air defense projects to managers. In order to clarify the misunderstanding of the ex situ construction fee of civil air defense projects in practice and facilitate the administrator to verify the nature of creditor's rights, this paper discusses it through judicial practice cases.

First, the concept of civil air defense construction costs

The ex situ construction fee for civil air defense projects refers to the ex situ construction fee for civil air defense projects that the construction unit cannot build an air defense basement in accordance with the Civil Air Defense Law and relevant regulations due to the objective conditions such as geology, topography and construction, and is paid to it in accordance with relevant standards with the approval of the competent civil air defense department, which involves national security and public interests and has the nature of administrative fees.

Second, the civil air defense construction fee dispute case

By searching the database for the words "civil air defense project cost and bankruptcy", only five disputes caused by the manager's confirmation of civil air defense project cost were found, and there were few cases.

Judicial case of bankruptcy civil air defense relocation construction fee dispute

serial number

case number

Main applications of civil air defense office

Referee result

1

(line 20 18) E- 10, review reply 1 No.

In administrative non-litigation cases, the Civil Air Defense Office investigated and dealt with the developer's failure to pay the civil air defense relocation construction fee, and made administrative penalties. After that, the developer failed to execute the administrative penalty due to bankruptcy, and the Civil Defense Office applied to the court for enforcement.

Administrative decision (20 17)02 of Songzi civil air defense office on September 26th, 2065438 shall not be enforced.

2

(20 18) Lu 0 124 Republic of China 3 179

The ex situ construction fee of civil air defense project enjoys the right of priority in the bankruptcy property; During the court session, it was changed to petition to confirm that the ex situ construction fee of civil air defense project is an ordinary creditor's right.

Reject the litigation request and support the creditor's rights confirmed by the administrator as inferior.

three

(20 19) No.2827 1806 in the early Republic of China.

Apply for priority compensation for the construction cost of civil air defense projects.

Reject the application and support the administrator to confirm it as an ordinary creditor's right.

four

(20 19) Shaanxi 0 1 No.857 in the early Republic of China

People's air defense works ex situ construction fees and late fees enjoy the priority of compensation;

Reject the application, support the administrator to confirm that the civil air defense project construction fee is an ordinary creditor's right, and do not confirm the audit result of the late payment fee.

five

(2020) Ji 1 125 Early Republic of China 3 19

The amount of creditor's rights claiming the ex situ construction fee of civil air defense project is 12 17280 yuan.

Support the claim, and confirm that the plaintiff enjoys the claim amount of 1, 2 1, 7280 yuan for the ex situ construction fee of the civil air defense project. The court does not recognize the nature of the creditor's right, but the administrator recognizes it as an ordinary creditor's right.

From the above cases, it can be seen that the main dispute brought to the court is that creditors and managers have different understandings of the nature of the creditor's rights for the ex situ construction fee of civil air defense projects. The civil air defense office of government agencies usually thinks that the civil air defense construction fee levied as a public right should enjoy the priority of compensation, but the administrator confirms it as an ordinary creditor's right based on the principle of bankruptcy law, and even some administrators confirm it as a bad creditor's right.

Third, the viewpoint of this article

This paper holds that the priority of compensation in law must be clearly stipulated by law, and there is no legal basis for the relocation of civil air defense projects as the priority of compensation, and managers should regard it as an ordinary creditor's right in bankruptcy.

First, there are two kinds of priorities stipulated by the current law. One is procedural priority, which is the priority enjoyed by a specific person in applying for a patent or registering a trademark under special circumstances; The second is substantive priority, that is, civil priority. There are two kinds of common civil priority in bankruptcy: one is general priority, which enjoys the priority of compensation for all the property of the bankrupt debtor; According to Article 1 13 of the Enterprise Bankruptcy Law, employees' creditor's rights and tax creditor's rights. Second, the special priority, in bankruptcy, the debtor has the priority to be compensated for specific property, such as property secured creditor's rights based on agreed reasons; Priority of specific movable property such as ships and airplanes and priority of compensation for construction projects based on legal reasons. The law does not stipulate that the cost of building civil air defense projects easily has the priority to be compensated.

Second, the ex situ construction fee for civil air defense projects is a administrative charge with the nature of public law, but it does not have the nature of enjoying civil priority. Article 28 of the Minutes of the National Bankruptcy Trial Conference (20 18) stipulates the principle and order of repayment of bankruptcy claims. The second and third sentences of this article stipulate that the people's court can reasonably determine the repayment order of the creditor's rights that are not clearly stipulated by law according to the principle that the personal injury compensation creditor's rights take precedence over the property creditor's rights, the private law creditor's rights take precedence over the public law creditor's rights and the compensatory creditor's rights take precedence over the punitive creditor's rights. After paying off in the order stipulated in Article 113 of the Enterprise Bankruptcy Law, the bankruptcy property still remains, which can be used to pay off punitive claims such as civil punitive damages, administrative fines and criminal fines that occurred before bankruptcy acceptance. This article establishes the spirit that the state does not compete with the people for profits, and the creditor's rights formed by public power should be inferior to those formed by private law, and the creditor's rights formed by public power disposal should be inferior to the compensatory rights of civil rights. Although the ex situ construction fee of civil air defense project is generated by the construction of national defense project and has the attribute of public interest, it is essentially a public law creditor's right and cannot enjoy the exception of taking precedence over civil rights.

Third, there is no legal basis for identifying the ex situ construction cost of civil air defense projects as inferior creditor's rights. The Enterprise Bankruptcy Law does not make independent and clear provisions on the types of creditor's rights, but only stipulates the order of repayment in article 1 13, which only clarifies the order in which different types of creditor's rights can enjoy distribution in ordinary creditor's rights. Article 28 of the Minutes of the National Bankruptcy Trial Conference (20 18) only stipulates the principle and order of repayment of bankruptcy claims. At present, subordinated creditor's rights, as an independent type of creditor's rights, have no legal basis, and are just some special creditor's rights in ordinary creditor's rights, which are distributed and paid off in the order of subordinated repayment. Therefore, there is no law that stipulates that the ex situ construction fee of civil air defense projects enjoys the priority of compensation, which should be recognized as ordinary creditor's rights; There is no law that clearly stipulates the order of repayment, and the creditor's rights in public law should be paid off after the creditor's rights in private law are paid off.

Fourth, practice summary.

In practice, the bankruptcy administrator should pay attention to:

(1) The civil air defense office, as the department that collects and collects the expenses of civil air defense ex situ construction, has the right to declare creditor's rights, usually known creditors. The administrator shall assist the court in notifying the civil air defense office to declare creditor's rights according to the provisions of Article 14 of the Enterprise Bankruptcy Law.

(2) The administrator and the civil air defense office of the government should communicate effectively in advance on the amount, nature and repayment order of the creditor's rights of the civil air defense project construction fee to avoid misunderstanding and disputes.

(3) When the administrator confirms the creditor's rights, he cannot confuse the classification of the creditor's rights with the repayment of the creditor's rights; Distinguish between ex situ construction fees and late fees for civil air defense projects, and deal with ex situ construction fees and late fees respectively; It is even more impossible to identify the type and nature of creditor's rights outside the legal provisions.

(4) In view of the professional nature of the bankruptcy business, the civil air defense office of the government can consult a lawyer or entrust an attorney to declare the creditor's rights in advance, and handle the creditor's rights declaration and other exercise affairs in a timely, legal, compliant and reasonable manner.

Verb (abbreviation of verb) related laws and regulations

Article 113 of the Enterprise Bankruptcy Law stipulates that the bankrupt property shall be paid off in the following order after paying off the bankruptcy expenses and beneficial debts first: (1) The wages, medical care, disability allowance and pension expenses owed by the bankrupt to the employees shall be included in the basic old-age insurance and basic medical insurance expenses of the employees' personal accounts, as well as the compensation that should be paid to the employees according to laws and administrative regulations; (2) Social insurance premiums and taxes owed by the bankrupt other than those specified in the preceding paragraph; (3) Ordinary bankruptcy claims.

Article 28 of the Minutes of the National Court Bankruptcy Trial Work Conference stipulates: the principle and order of liquidation of bankruptcy claims. For creditor's rights that are not clearly stipulated by law, the people's court can reasonably determine the repayment order according to the principles that personal injury compensation claims take precedence over property claims, private law claims take precedence over public law claims, and compensatory claims take precedence over punitive claims. Personal injury compensation caused by the debtor's infringement may be paid in the order specified in Item 1, Paragraph 1, Article 113 of the Enterprise Bankruptcy Law, except those involving punitive damages. After paying off in the order stipulated in Article 113 of the Enterprise Bankruptcy Law, the bankruptcy property still remains, which can be used to pay off punitive claims such as civil punitive damages, administrative fines and criminal fines that occurred before bankruptcy acceptance.

Article 22 of the Law of People's Republic of China (PRC) on National Defense and Air Defense: When new civil buildings are built in cities, basements that can be used for air defense in wartime shall be built in accordance with relevant state regulations.

Implementation in Shandong Province

Article 16 of the Measures: When a new civil building is built in a city, the construction unit shall build an air defense basement in accordance with state regulations; If it is not suitable for construction, it must be reported to the competent civil air defense department for approval, and the ex situ construction fee shall be paid according to the regulations, and the competent civil air defense department shall organize the ex situ construction.

Notice of Jinan Municipal Development and Reform Commission, Finance Bureau and Civil Air Defense Office on Standardizing the Collection and Payment of Ex situ Construction Fees for Civil Air Defense Projects, Ji Fa Gaijia [2065438+07] No.375, three paragraphs stipulate that ex situ construction fees for civil air defense projects belong to government non-tax revenue.