公司法和商法双语讲义第23章Corporate and Business Law Chapter23.docxVIP

Members23 Members Overview INSOLVENCY Compulsory Voluntar y Cred Creditors Insolvency of a company usually results in liquidation either compulsory or voluntary . Liquidation may be avoided by administration. Liquidation may also be entered into whilst a company is still solvent. 2 Administration orders Purpose of administration 2.1 (a) The appointment of an administrator is designed to give companies in financial difficulty (usually with insolvency looming) a “ breathing space ” from which to trade out of their difficulties. (b) Administrators may be appointed either by the court, the holders of floating charges created on or post 15.9.03 and the company and its directors. (c) If the company and its directors intend to appoint an administrator they must give five days notice to any floating charge holder entitled to appoint either an administrative receiver or administrator. This effectively means that a floating charge holder can either block the company s choic e of administrator or block the administration procedure. (d) The administrator once appointed must perform his functions with the objective of: (i) rescuing the company as a going concern, or (ii) achieving a better result for the company s creditors than winding up; or (iii) realising property to distribute to secured or preferential creditors. Consequences of the appointment of an administrator 2.2 (a) Winding-up cannot be commenced or continued with. (b) No goods can be recovered from the company (e.g. H.P. repossessions) without court leave. (c) Legal proceedings can only be commenced or continued with the courts permission. Administrators proposals and powers 2.3 (a) The administrator should: (i) Establish the state of the company s affairs by noibntga ia statement of affairs. (ii) Prepare proposals to achieve the aim of administration. (b) A creditors meeting must be called within 10 weeks of administrators appointment. (c) The meeting will (i) accept; (ii)