引言

按照《中华人民共和国企业破产法》（“《企业破产法》”）第三十二条[1]规定，管理人有权起诉请求法院撤销破产企业在一定期间内的个别清偿行为。债权人在面对该类个别清偿撤销诉讼时，时常面临举证困难、法律适用不明确等困境。

我们近期代理某金融机构债权人处理一宗个别清偿纠纷诉讼二审程序。本文将尝试结合这一案件，提出我们对上述法律规定的思考，讨论债权人应对个别清偿撤销诉讼的“困境”与“突围”，并且为债权人提供缓释该类纠纷带来的潜在风险的思路。

一、债权人应对个别清偿撤销纠纷的困境

为充实破产企业偿债资产、维护债权人公平受偿，《企业破产法》赋予管理人针对债务人破产前一定期间内特定行为的撤销权。本文关注的是《企业破产法》第三十二条指向的债务人在破产申请受理前6个月内的个别清偿行为，或称“偏颇性清偿行为”。依照该条规定，撤销该类行为需要满足以下条件：

Directors resign for many reasons. For example, there may be disagreements among stakeholders about the future course of the company, they may be concerned about the risks associated with financial difficulty/insolvency, or they may just wish to retire.

This is one of a series of articles we at Morton Fraser are producing to guide our clients through the wholesale change proposed in Scots law in relation to security over goods, intellectual property and shares, on the one hand, and invoice finance or the purchase of receivables, on the other. For a general introduction to what the Bill covers, see here.

UK Government introduces a temporary increase to minimum debt level required for a winding up petition

Restrictions have been in place since the start of the pandemic to prevent creditors taking steps to wind up debtor companies. Those restrictions are due to expire on September 30, 2021. To lessen the risk of October seeing a mass rush by creditors seeking to wind up their debtors, the UK Government has introduced a further temporary measure in connection with liquidation petitions.

In this two part article we highlight for directors some of the main ways in which the general protection of limited liability does not apply or can be lost.

Part one of this article discusses those exceptions to the principle of limited liability that arise in insolvency or distress situations. Part two deals with the provisions that have more general applicability.

Breach of duties

Limited liability is one of the fundamental concepts in our understanding of company law. Even people who know very little about the working of limited companies may know that directors and shareholders are not liable for the debts of their companies. For the last 160 years, the protection of limited liability has been a key factor in economic growth and commercial activity as it has allowed entrepreneurs to speculate and take risks that they might not have been willing to do if the risk of personal liability overshadowed their decision-making.

One of the main differences in insolvency law between Scotland and England & Wales relates to the challengeable transactions regime under the Insolvency Act 1986.

In both jurisdictions, transactions that are entered into before a formal insolvency process begins can be attacked if they are detrimental to the creditors of the insolvent company. However, although both systems use similar language and address similar concerns, the law in the two jurisdictions is different, most notably with different time periods and defences to a challenge.

The pandemic has created a chaotic business environment in which it is has at times been practically impossible to make any definitive plans. Lockdown measures have changed regularly, legislation has been introduced and extended and the rules for conducting business (when it is even possible to trade) have varied across the UK and have at times been criticised by those most harshly effected as being arbitrary and unscientific. All of this has often happened at very short notice.

As a result of temporary provisions that have been in place since March 2020*, during the Covid period directors have been broadly protected from the risk of personal liability for wrongful trading.  Those temporary provisions are due to end on 30 June, 2021 and as a result, the law on wrongful trading again becomes highly relevant.

We are hopefully now beginning to move out of the various lockdowns and restrictions that have been put in place to deal with the pandemic.

As things begin to return to some form of "normality", businesses might begin to feel some sort of relief. However, the inevitable consequence of normality returning is that some of the temporary rules that have been put in place to assist businesses through these difficulties will fall away.