Thailand Law Journal 2010 Spring Issue 1 Volume 13

Assets seized or attached by the receiver will be sold upon the court adjudicating the debtor a bankrupt in any manner that is most convenient and beneficial. Sale other than by public auction must receive the approval of the creditors1 committee, except when the asset is perishable, or if kept for any time would deteriorate, or the expense would be disproportionate to the value of such assets. These assets can be sold without approval of the creditors' committee and before the judgment declares the debtor bankrupt (sections 19 paragraph three and 123). Assets in excess of that reserved for fees and expenses must be distributed by the receiver amongst the creditors without delay (section 124).

2.1.2 To act as a lawyer for a debtor

When the court has issued a receivership order upon the debtor, the receiver has sole power to compromise, come to a settlement, or file actions, or defend actions, relating to the assets of the debtor (section 22(3)). The receiver will join in all civil actions relating to the assets of the debtor which may be pending in court at the time when the court orders the debtor to be under receivership, and when the receiver applies by motion, the court is empowered to order the cessation of the hearing of such civil actions, or make any other order it may deem proper (section 25). The receiver also has a duty to assist in interrogating the debtor or other persons before the court in matters pursuant to the Bankruptcy Act (section 142 (2)).

2.1.3 To administer a bankruptcy case in general according to the Bankruptcy Act

When the court has issued an absolute receivership, the debtor must take an oath before the receiver and submit an explanation regarding his/her business and assets, showing the cause of his/her insolvency, his/her assets and liabilities and the list of creditors (section 30)). After that, the receiver will call a meeting of all creditors as soon as possible to consider whether the debtors proposal for a composition of debts should be accepted, or whether the court should be asked to adjudge the debtor a bankrupt, and to consult as to the management of the debtor's assets in the future. This meeting is called the first meeting of creditors (section 31). Subsequent meetings of creditors maybe called by the receiver at such times as appropriate, or as provided by laws, or as ordered by a court, or when creditors with debts of a total amount of not less than one quarter of the whole debts submitted for repayment make a written demand for the calling of a meeting (section 32). The receiver presides at each of the meetings of creditors, and the minutes of the meetings are signed by the receiver to be kept as records (section 33).

After the first meeting of creditors has been held, the court will examine the debtor publicly immediately to learn about the debtor's business and assets, the reason for insolvency, and the conduct of the debtor as to whether he/she has done or omitted to do any act amounting to an offence under the Bankruptcy Act. The receiver will send a notice of the date and time fixed by the court for the debtor's public examination to the debtor and creditors for their information no less than seven days in advance, and such notice shall be published in, at least, one daily newspaper (section 42). In addition, the receiver has a duty to report any matters relating to the business, assets, or conduct of the debtor, as required by the court (section 142 (1)).

As soon as the court has issued the receivership order upon the debtor, or adjudged the debtor a bankrupt, and has not yet discharged him/her from such bankruptcy, the debtor will apply to the receiver to fix a sum of money for expenses for the maintenance of himself/herself and his/her family (section 67(1)). The debtor cannot leave Thailand, except with the written permission of the court or the receiver, and if the debtor changes his/her address, he/she must report the new address, within a reasonable time in writing to the receiver (section 67(3)). Moreover, the, receiver has a duty to verify all the debt repayment claims filed according to section 91 and, after the  examination of the repayment claims, send a report to the court (section 105).

When the receiver has made final distribution of the assets of the debtor, or has ceased to take action under a_ composition of debts, or when the debtor has no distributable assets, the receiver may make a report of the business and accounts of receipts and expenditures in such bankruptcy case for submission to the court and ask the court to order closure of the case (section 133). Upon application by an interested person or receiver, the court is empowered to order the termination, of the bankruptcy action in any of the following cases: (1) no creditors pay fees or expenses for the administration of the case; (2) the debtor should not be adjudged a bankrupt; (3) the debts of the bankrupt have been paid in full; or (4) after the final distribution, during the following ten-year period, the receiver has not been able to collect any further assets of the bankrupt (sections 135 and 136).

2.1.4 How about in business reorganization proceedings

Under Chapter 3/1, proceedings for the reorganization of the business of a debtor, an official receiver sets up creditors' meetings to consider a business reorganization plan, to consider the creditors' applications for debt repayments for business reorganization, and to supervise the business reorganization process to be in accordance with the reorganization plan accepted, by the creditors' meeting and approved by the court. The official receiver may also be appointed to act as an Interim Executive, Plan Administrator, or Temporary Plan Administrator.

2.2. Qualifications and admission criteria for the position of an official receiver

Since an official receiver is a government officer, the qualifications for becoming a receiver are the same as those required to become a government officer as stipulated in section 36 of the Government Official Regulations(GOR) Act B.E. 2551 (A.D.2008). These include being of Thai nationality; being over eighteen years of age: having faith in the democratic system; not holding any political position; having competence to perform assigned duties; not being under any preliminary discipline orders; being morally upstanding; not being a member of any political party; not being a bankrupt; having never served a prison sentence for a criminal offence with the exception of those related to negligence or petty crime; having never been discharged or expelled from a state enterprise; having never been discharged or expelled from any government organization; having never been expelled for misconduct according to the GOR Act or other laws; having not acted in a dishonest manner during the admission examination. Admission to the profession is by means of examination. Those who pass the examination are allocated their position according to his/her ranking from the examination. The OCSC is responsible for holding the, examinations (section 53, GOR Act).