When settling a civil dispute where one party is a Cooperative, but the involved parties cannot determine the address, cannot find a legal representative of the COOPERATIVE, how to handle it?
In this regard, on April 7, 2017, the Supreme People’s Court issued Official Letter 01/2017/GD-SUPPORT PEOPLE’S COURT guiding the People’s Courts, Military Courts at all levels and other relevant agencies. Units directly under the Supreme People’s Court shall settle as follows:
According to the provisions of Clause 2, Article 97 of the 2015 Civil Procedure Code, the Court may collect documents and evidences to determine the operation situation and the legal representative of the participating cooperative. The proceedings shall be handled on a case-by-case basis as follows:
– Where the cooperative has not been dissolved or declared bankrupt; If the cooperative does not fall into the cases specified in Clause 2, Article 42 of the Law on Cooperatives 2003 and Clause 2, Article 54 of the Law on Cooperatives 2012, based on the decision on establishment of the cooperative, the operation charter of the cooperative commune (if any) to determine the legal representative of the cooperative. If the legal representative of the cooperative dies, the surviving members (according to the Law on Cooperatives 2003) or the members of the cooperative (according to the Law on Cooperatives 2012) have the right to vote or vote. representative to participate in the proceedings. If it is not possible to elect or appoint a representative to participate in the proceedings, the Court shall request the surviving members of the cooperative to participate in the proceedings.
– In case the cooperative has been divided or separated: According to the provisions of Clause 4, Article 52 of the Law on Cooperatives 2012, the new cooperatives and unions of cooperatives must be jointly responsible for the obligations of the cooperatives. The cooperative is divided or separated and is the successor to the rights and obligations of the divided or separated cooperative. The legal representative of the new cooperative or union of cooperatives will participate in the proceedings at the Court.
– In case a cooperative is consolidated or merged with other cooperatives or unions of cooperatives, the legal representative of the cooperative or union of cooperatives after the consolidation or merger will participate in the merger. procedural.
– In case the cooperative has not been dissolved, has not been declared bankrupt but falls into the case specified in Clause 2, Article 54 of the Law on Cooperatives 2012, the People’s Committee of the same level as the state agency shall issue a certificate. registering a cooperative must issue a decision on dissolution of such cooperative. The Court requested the People’s Committee to settle according to its competence and based on Point d, Clause 1, Article 214 of the 2015 Civil Procedure Code to issue a decision to suspend the settlement of the case.
– In case the cooperative has had a dissolution decision, the handling of common property and capital (the 2012 Law on Cooperatives is called undivided property) of the cooperative shall be settled according to Article 36 of the Law on Cooperatives in 2012. 2003, Clause 2, Article 48 of the Law on Cooperatives 2012, Article 21 of the Government’s Decree No. 193/2013/ND-CP dated November 21, 2013 detailing a number of articles of the 2012 Law on Cooperatives. In that case, upon dissolution of the cooperative, an undivided part of the common property is assigned to the local government for management, the representative of the local government (where the cooperative’s assets are managed) will be the successor. rights and obligations of cooperatives and participate in court proceedings.
– In case the cooperative has already issued a decision to declare bankruptcy, the asset handling shall comply with the provisions of the Bankruptcy Law.
Source: According to kiemsat.vn
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