Payment ban
Payment ban is a by law or governmental instrument issued to a particular debtor pronounced ban , payments to make.
General
All cases of the payment prohibition concern the economic crisis of a debtor and force him to refrain from all payments from his remaining assets to himself or to third parties ( creditors ) . This is an early bankruptcy protection linked to the rights of creditors not to belittle.
species
There are corporate payment prohibitions and bans from national sovereign act, which also arise from the law.
- The company law payment bans affect legal persons under private law that are in a corporate crisis . The almost identical provisions of Section 130a HGB (for the open trading company ), Section 92 (2 ) AktG ( stock corporation ), Section 64 sentence 1 GmbHG ( GmbH ) and Section 99 GenG ( cooperative ) aim to preserve the insolvency estate . They should ensure that the creditors are equally satisfied in the run-up to the insolvency proceedings . The payment prohibition includes all services that reduce the company's assets. It applies from the point in time at which the board of directors or the management recognized the existence of the reason for insolvency ( insolvency or over-indebtedness ). The ban on payment does not apply to payments that, after knowing that they are ready for bankruptcy, are compatible with the diligence of a prudent and conscientious manager. It does not differentiate between payees , so payments to the tax office or employees are also prohibited.
- The state act of sovereignty concerns foreclosure . The “preliminary payment prohibition ” according to § 845 ZPO (“pre-attachment”) prohibits the debtor from making a payment to third parties in the meantime. It is a relief effort to avert disadvantages that could result from the passage of time for the creditors because the debtor until the delivery of the attachment and transfer decision that demand feeding or otherwise has them. From the time the attachment and transfer decision is served, the third-party debtor may no longer transfer the attached claim (ban on payment) and the debtor may no longer dispose of it or collect it (ban on collection). The attachment and transfer order therefore includes the prohibition on the third party debtor to pay the attached claim to the debtor ( arrestatory ) and the requirement for the debtor to refrain from collecting the claim ( inhibition ). In order for the attachment and transfer order to the rank enters the provisional payment ban, which must seizure within one month are effected (§ 845 para. 2 ZPO). If a monetary claim is to be attached, the court must forbid the third-party debtor to pay to the debtor. At the same time, the court has to issue a command to the debtor to abstain from any disposition of the claim, in particular its collection ( Section 829 (1) ZPO).
- The German Banking Act (KWG) provides for a number of measures to be taken by BaFin in the event of “danger” under Section 46 (1) KWG . If there is a threat of this, BaFin can for example prohibit the institute from making payments (for example, deposits or promised loans or the sale of assets ) within the framework of a moratorium on raising funds (“prohibition of sale and payment”) in accordance with Section 46 (1) No. 4 KWG. . It serves to secure the existing assets. The ban on sale relates to all items and rights , the ban on payments to cash and cashless payments . The counter lock serves to support the payment ban, which also affects ATMs and online banking .
- Part of a general prohibition of disposal in accordance with Section 21 (2) No. 2 InsO is also a prohibition on payment in insolvency proceedings, which the bankruptcy debtor must observe. According to Section 80 (1) InsO, he loses his power of disposal over his assets and transfers them to the insolvency administrator - who is solely authorized to dispose of them .
International
The international level of a payment ban can be part of a moratorium . A state forbids its residents and the companies in that state from making payments abroad or makes such payments, especially in foreign currency , dependent on its approval. The payment ban is the main instrument of a transfer freeze, especially in countries with scarce currency reserves .
