11 U.S.C. § 343 — Examination of the debtor

Page 65 TITLE 11—BANKRUPTCY § 344 commenced under this title before such effective date, except as otherwise provided, see section 1501 of Pub. L. 109–8, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–394 effective Oct. 22, 1994, and not applicable with respect to cases commenced under this title before Oct. 22, 1994, see section 702 of Pub. L. 103–394, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–353 effective with respect to cases filed 90 days after July 10, 1984, see section 552(a) of Pub. L. 98–353, set out as a note under section 101 of this title. § 343. Examination of the debtor The debtor shall appear and submit to exam- ination under oath at the meeting of creditors under section 341(a) of this title. Creditors, any indenture trustee, any trustee or examiner in the case, or the United States trustee may ex- amine the debtor. The United States trustee may administer the oath required under this section. (Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2565; Pub. L. 98–353, title III, § 436, July 10, 1984, 98 Stat. 370; Pub. L. 99–554, title II, § 213, Oct. 27, 1986, 100 Stat. 3099.) HISTORICAL AND REVISION NOTES SENATE REPORT NO. 95–989 This section, derived from section 21a of the Bank- ruptcy Act [section 44(a) of former title 11], requires the debtor to appear at the meeting of creditors and submit to examination under oath. The purpose of the examination is to enable creditors and the trustee to determine if assets have improperly been disposed of or concealed or if there are grounds for objection to dis- charge. The scope of the examination under this sec- tion will be governed by the Rules of Bankruptcy Pro- cedure, as it is today. See rules 205(d), 10–213(c), and 11–26. It is expected that the scope prescribed by these rules for liquidation cases, that is, ‘‘only the debtor’s acts, conduct, or property, or any matter that may af- fect the administration of the estate, or the debtor’s right to discharge’’ will remain substantially un- changed. In reorganization cases, the examination would be broader, including inquiry into the liabilities and financial condition of the debtor, the operation of his business, and the desirability of the continuance thereof, and other matters relevant to the case and to the formulation of the plan. Examination of other per- sons in connection with the bankruptcy case is left completely to the rules, just as examination of wit- nesses in civil cases is governed by the Federal Rules of Civil Procedure. Editorial Notes AMENDMENTS 1986—Pub. L. 99–554 amended section generally. Prior to amendment, section read as follows: ‘‘The debtor shall appear and submit to examination under oath at the meeting of creditors under section 341(a) of this title. Creditors, any indenture trustee, or any trustee or examiner in the case may examine the debtor.’’ 1984—Pub. L. 98–353 substituted ‘‘examine’’ for ‘‘examiner’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1986 AMENDMENT Effective date and applicability of amendment by Pub. L. 99–554 dependent upon the judicial district in- volved, see section 302(d), (e) of Pub. L. 99–554, set out as a note under section 581 of Title 28, Judiciary and Judicial Procedure. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–353 effective with respect to cases filed 90 days after July 10, 1984, see section 552(a) of Pub. L. 98–353, set out as a note under section 101 of this title. PARTICIPATION BY BANKRUPTCY ADMINISTRATOR AT MEETINGS OF CREDITORS AND EQUITY SECURITY HOLDERS A bankruptcy administrator or the bankruptcy ad- ministrator’s designee may examine debtor at meeting of creditors and may administer oath required by this section, see section 105 of Pub. L. 103–394, set out as a note under section 341 of this title. § 344. Self-incrimination; immunity Immunity for persons required to submit to examination, to testify, or to provide informa- tion in a case under this title may be granted under part V of title 18. (Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2565.) HISTORICAL AND REVISION NOTES SENATE REPORT NO. 95–989 Part V [§ 6001 et seq.] of title 18 of the United States Code governs the granting of immunity to witnesses be- fore Federal tribunals. The immunity provided under part V is only use immunity, not transactional immu- nity. Part V applies to all proceedings before Federal courts, before Federal grand juries, before administra- tive agencies, and before Congressional committees. It requires the Attorney General or the U. S. attorney to request or to approve any grant of immunity, whether before a court, grand jury, agency, or congressional committee. This section carries part V over into bankruptcy cases. Thus, for a witness to be ordered to testify before a bankruptcy court in spite of a claim of privilege, the U. S. attorney for the district in which the court sits would have to request from the district court for that district the immunity order. The rule would apply to both debtors, creditors, and any other witnesses in a bankruptcy case. If the immunity were granted, the witness would be required to testify. If not, he could claim the privilege against self-incrimination. Part V is a significant departure from current law. Under section 7a(10) of the Bankruptcy Act [section 25(a)(10) of former title 11], a debtor is required to tes- tify in all circumstances, but any testimony he gives may not be used against him in any criminal pro- ceeding, except testimony given in any hearing on ob- jections to discharge. With that exception, section 7a(10) amounts to a blanket grant of use immunity to all debtors. Immunity for other witnesses in bank- ruptcy courts today is governed by part V of title 18. The consequences of a claim of privileges by a debtor under proposed law and under current law differ as well. Under section 14c(6) of current law [section 32(c)(6) of former title 11], any refusal to answer a ma- terial question approved by the court will result in the denial of a discharge, even if the refusal is based on the privilege against self incrimination. Thus, the debtor is confronted with the choice between losing his dis- charge and opening himself up to possible criminal prosecution. Under section 727(a)(6) of the proposed title 11, a debt- or is only denied a discharge if he refuses to testify after having been granted immunity. If the debtor claims the privilege and the U. S. attorney does not re- quest immunity from the district courts, then the debt- or may refuse to testify and still retain his right to a discharge. It removes the Scylla and Charibdis choice for debtors that exists under the Bankruptcy Act [former title 11].