« ПретходнаНастави »
AMENDMENT OF JULY 7, 1952
This marks the enactment of what has been known as the National Bankruptcy Conference "non-controversial bill", S. 2234 and H.R. 5054, 82d Cong. Most of its provisions were developed soon after World War II by the National Bankruptcy Conference and embodied in earlier bills; H.R. 5693, 80th Cong., and H.R. 3111, 81st Cong. Failure of enactment by the 80th Congress was due in part to the inclusion of some provisions that had to be eliminated as controversial, notably relating to the limitations on discharge and priority of tax claims. Failure to pass the 81st Congress seemed to be attributable to refusal of a single Senate Committeeman to pass the bill without understanding it, and his failure to find the time to master it.
Sections 55, 56 and 57 of the 1952 amendment substantially correspond to sections 4, 5, 6 and 7 of the Chandler Act (1938). Repeal of inconsistent acts was covered in section 55a. Section 55b is the severability clause. Section 56 corresponds to section 6 and section 57 to section 7 of the Chandler Act. See p. 298, ante. There is nothing corresponding to section 5b of the Chandler Act, disclaiming the significance of section headings. There is no exception to the declaration that the amendatory act shall govern pending proceedings as far as practicable.
The effective date of the Act is October 7, 1952.
18 U.S.C., CRIMES AND CRIMINAL PROCEDURE,
Definitions. As used in this chapter:
The term "bankrupt" means a debtor by or against whom a petition has been filed under Title 11.
The term "bankruptcy" includes any proceeding, arrangement, or plan pursuant to Title 11.
§ 152. Concealment of assets; false oaths and claims; bribery. Whoever knowingly and fraudulently conceals from the receiver, custodian, trustee, marshal, or other officer of the court charged with the control or custody of property, or from creditors in any bankruptcy proceeding, any property belonging to the estate of a bankrupt; or
Whoever knowingly and fraudulently makes a false oath or account in or in relation to any bankruptcy proceeding; or
Whoever knowingly and fraudulently presents under oath any false claim for proof against the estate of a bankrupt, or uses any such claim in any bankruptcy proceeding, personally, or by agent, proxy, or attorney, or as agent, proxy, or attorney; or
Whoever knowingly and fraudulently receives any material amount of property from a bankrupt after the filing of a bankruptcy proceeding, with intent to defeat the bankruptcy law; or
Whoever knowingly and fraudulently gives, offers, receives or attempts to obtain any money or property, remuneration, compensation, reward, advantage, or promise thereof, for acting or forbearing to act in any bankruptcy proceeding; or
Whoever, while an agent or officer of any person or corporation, and in contemplation of a bankruptcy proceeding by or against such person or corporation, or with intent to defeat the bankruptcy law, knowingly and fraudulently transfers or conceals any of the property of such person or corporation; or
Whoever, after the filing of a bankruptcy proceeding or in contemplation thereof, knowingly and fraudulently conceals, destroys, mutilates, falsifies, or makes a false entry in any document affecting or relating to the property or affairs of a bankrupt; or
Whoever, after the filing of a bankruptcy proceeding, knowingly and fraudulently withholds from the receiver, custodian,
trustee, marshal, or other officer of the court entitled to its possession, any document affecting or relating to the property or affairs of a bankrupt.
Shall be fined not more than $5,000 or imprisoned not more than five years, or both.
§ 153. Embezzlement by trustee, receiver or officer. Whoever knowingly and fraudulently appropriates to his own use, embezzles, spends, or transfers any property or secretes or destroys any document belonging to the estate of a bankrupt which came into his charge as trustee, receiver, custodian, marshal, or other officer of the court, shall be fined not more than $5,000 or imprisoned not more than five years, or both.
§ 154. Adverse interest and conduct of referees and other officers. Whoever knowingly acts as a referee in a case in which he is directly or indirectly interested; or
Whoever, being a referee, receiver, custodian, trustee, marshal, or other officer of the court, knowingly purchases, directly or indirectly, any property of the estate of which he is such officer in a bankruptcy proceeding; or
Whoever being such officer, knowingly refuses to permit a reasonable opportunity for the inspection of the documents and accounts relating to the affairs of estates in his charge by parties in interest when directed by the court to do so
Shall be fined not more than $500, and shall forfeit his office, which shall thereupon become vacant.
§ 155. Fee agreements in bankruptcy proceedings. Whoever, being a party in interest, whether as a debtor, creditor, receiver, or trustee or representative of any of them, or attorney for any such party in interest, in any receivership, bankruptcy, or reorganization proceeding, in any United States court or under its supervision, enters into any agreement, express or implied, with another such party in interest, or attorney for another such party in interest, for the purpose of fixing the fees or other compensation to be paid to any party in interest or to any attorney for any party in interest for services rendered in connection therewith, from the assets of the estate; or
Whoever, being a judge of a court of the United States knowingly approves the payment of any fees or compensation so fixed
Shall be fined not more than $5,000 or imprisoned not more than one year, or both.
This chapter was enacted June 25, 1948, P.L. 772, 62 Stat. 683, 865, as part of the general revision of the criminal provisions of the United States Code. Section 29 of The Bankruptcy Act was repealed in connection with this revision, as was also the "Borah Act" of August 25, 1937, P.L. 373, 75th Cong., 50 Stat. 810, which had prohibited agreements concerning fees to be paid from estates in bankruptcy, receivership or reorganization. The repeals were designed merely to prevent duplication of matter covered by revised Title 18.
Provisions of the Borah Act involving attorneys or attorneys' fees were not covered in section 155 as enacted in 1948, but this was apparently an inadvertence, for they were restored in full force by the amendment of May 24, 1949, 63 Stat. 90. The harshness and inflexibility of these provisions has been questioned in the National Bankruptcy Conference, but there is no pending bill to modify them.
REFEREES AS UNITED STATES COMMISSIONERS
Act of May 24, 1949, 63 Stat. 100, amending 28 U.S.C. § 631b, disqualified full time referees from holding the office of United States Commissioner. Part time referees remain eligible. Full time referees were formerly eligible. See 28 U.S.C. § 631b, as enacted June 25, 1948, 62 Stat. 915; Act of Dec. 28, 1945, P.L. 272, 79th Cong., 59 Stat. 659.
GENERAL ORDERS AND FORMS IN BANKRUPTCY
(11 U.S.C.A. following section 53.)
General Orders 1-38 and Forms in Bankruptcy 1-63 were promulgated by the United States Supreme Court November 28, 1898. 172 U.S. 653.
General Order 35 was amended December 11, 1905. 199 U.S. 618.
General Orders 39-45 were added and the last sentence of General Order 5 was added April 13, 1925. 267 U.S. 613.
General Order 46 was added and General Order 39 was amended January 13, 1930. 280 U.S. 617.
General Order 46 was amended June 1, 1931. 283 U.S. 870. General Order 47 was added March 31, 1932. 286 U.S. 573. General Orders 1, 3-5, 10, 12-14, 17, 18, 21, 24, 26, 28-33, 36, 38, 39, 41-44 and 47 were amended and General Orders 48-50 and Forms 64-75 were added effective March 24, 1933. 288 U.S. 621.
General Orders 12 (3), 14, 17 (1) and (7), 18 (4), 21 (8), 28, 29, 38, 42 (2), 44 second paragraph, 47, 48, and 50 (1), (5), (6) and (12) and Forms 65, 72, 73 and 74 were amended, Form 76 was approved, and Form 75 was abrogated, June 1, 1936. 298 U.S. 695.
The United States Supreme Court effected a complete revision by the following Order establishing General Orders and Forms in Bankruptcy. 305 U.S. 679, 11 U.S.C.A. following section 53.
Previous to this revision, the General Orders were designated by roman numerals. For convenience arabic numerals have been used in the above chronological statement, but the footnotes to the statute employ the roman numerals in referring to the General Orders prior to 1939.
It is ordered, on this 16th day of January, 1939, that General Orders XIII, XXVII and XLVI of the General Orders in Bankruptcy, and Forms Nos. 4, 7, 8, 19, 29, 32, 36, 39, 41, 44, 45, 46, 49, 50, 51, 52, 53, 54, 55, 56, 60, 61, 62, 63, 64, 66, 70, 72 and 73 of the Forms in Bankruptcy, be, and they hereby are, abrogated. It is further ordered that the General Orders and Forms in Bankruptcy be, and they hereby are, amended and established to read as hereinafter set forth.
It is further ordered that this order shall take effect on Monday, February 13, 1939, and shall govern all proceedings then pending to which its provisions are applicable, except to the extent that in the opinion of the court its application to such proceedings would not be practicable or would work injustice, in which event the General Orders and Forms in Bankruptcy heretofore established shall apply: Provided, That the General Orders and Forms in Bankruptcy heretofore established shall apply to proceedings pending under sections 12, 73 and 74, as amended, of the Act entitled "An Act to establish a uniform system of bankruptcy throughout the United States," approved July 1, 1898.
The general orders as here published also give effect to the following:
It is ordered, on this 23d day of June, 1947, that General Orders Nos. 1, 10, 13, 24, 26, 27, 35(4), 46, 50 (12) and 56 and Forms in Bankruptcy Nos. 1, 12, 15, 17, 46, 47, 59, 70, 71, and 72 be, and they are hereby, amended and established to read as hereinafter set forth.
It is further ordered that this order shall take effect on Tuesday, July 1, 1947, and shall govern all proceedings then pending to which its provisions are applicable except to the extent that in the opinion of the court its application to such proceedings would not be practicable or work injustice, in which event the General Orders and Forms in Bankruptcy heretofore established shall apply.