Segregation right

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Segregation is a legal term in German insolvency law that deals with the separate satisfaction of an insolvency creditor outside of the actual insolvency proceedings on the basis of a security interest to which he is entitled .

General

German insolvency law is governed by the principle of equal satisfaction of creditors ( Latin par conditio creditorum ). However, this principle is often broken. In principle, the Insolvency Code (InsO) only recognizes one class of insolvency creditors ( Section 38 InsO) and only provides for subordinate insolvency creditors for an exceptional area ( Section 39 InsO). The law divides the creditors into

The other creditors are the actual bankruptcy creditors.

The segregation is aimed at preferential satisfaction from the bankruptcy estate. The aim of a creditor who can order real security is to acquire privileges to separate in the event of his debtor's bankruptcy . The real securities give the creditor the opportunity to request advance satisfaction from the proceeds for the specific object (§ § 805 ZPO , 49 ff. InsO). At the same time, this object is economically withdrawn from the group of creditors up to the amount of the right of separation. Separation rights take account of the need to create insolvency-proof securities.

Segregation ability

The InsO only provides for separation authorizations for loan collateral (Sections 49 to 51 InsO). All loan collateral that the insolvency debtor has made available to his creditors from his assets are eligible; in this respect, the insolvency debtor must act as security seller and borrower . For this reason, loan collateral represents an insolvency privilege vis-à-vis unsecured creditors (unsecured loans ). Rights from transfer by way of security ( assignment of vehicles by way of security ), assignment by way of security , mortgages and the pledging of objects or rights are also eligible.

Sections 49 InsO (real estate liens), Section 50 InsO (statutory, contractual and seizure liens : landlord's lien , pledging or seizure ) and Section 51 InsO (transfer by way of security, assignment by way of security, commercial rights of retention ) are decisive for the separability . In § 52 InsO it is made clear that the security buyer is only a bankruptcy creditor if the bankruptcy debtor has also assumed personal liability.

Procedure

Separation is the right of a creditor to preferentially satisfy himself from the proceeds from the realization of an object belonging to the target insolvency estate outside of the general provisions of insolvency proceedings. The preferential satisfaction from the security interests takes place according to the § § 166 to 173 InsO. According to this, the insolvency administrator is entitled to dispose of the collateral and must immediately distribute the proceeds from the sale minus the costs incurred to the collateral taker (Sections 166 (1), 170 (1) and 171 InsO). If, by way of exception, there is a right of realization according to § 166 Abs. 1 InsO, the insolvency administrator can leave the realization of the collateral to the collateral taker ( § 170 Abs. 2 InsO). The procedure for real property liens is based on the law on foreclosure auction and administration (ZVG) and for real securities on movables according to Sections 166 to 173 InsO.

The collateral taker bears the risk that the proceeds from realization do not cover his claim. If the collateral taker suffers a default if the proceeds from the sale are too low, his claim going beyond this will take part in further insolvency proceedings as an unsecured claim ( Section 52 sentence 2 InsO). If, on the other hand, the proceeds from the realization exceed the claim of the collateral taker, the excess is transferred to the insolvency estate.

Replacement retirement

The protection buyer entitled to segregation is also entitled to a replacement segregation analogous to the segregation procedure ( Section 48 InsO). If the security seller has unjustifiably sold a security asset before or the insolvency administrator after the opening of the insolvency proceedings, the security buyer can claim the return of the consideration in the full amount of the secured claim.

In the event that an item that is encumbered with a right of separation is sold without authorization , the person entitled to separation is granted protection. However, the first question to be asked is whether it is necessary to use an instrument that is not regulated by law. A right to segregation (and thus not a substitute segregation right) can continue on the surrogate . For example, in the case of an extended retention of title, the right to separate ownership extends to the proceeds. If this is not the case, for example if no extension of the retention of title has been agreed, further rights may be considered. According to § 48 sentence 2 InsO z. B. the substitute segregation be thwarted if the consideration is no longer distinguishable in the mass (for example, if the consideration was received in an account in the red and immediately offset against the debit).

Practical meaning

The right of separation particularly benefits credit institutions . Because of its economic position as a lender they can in creditworthiness weaker borrowers demand the provision of security rights, while economically weaker creditors often give unsecured loan. Suppliers are often secured by retention of title, which grant a right of separation.

The economic situation of a debtor is not infrequently characterized by the fact that value-adding real estate debts of the financing banks weigh on his property, suppliers reserve ownership, whereby the so-called extended retention of title corresponds to the transfer of ownership , and claims from ongoing transactions are to lending banks by way of Global assignment assigned for security. The facility falls under the landlord's lien, unless retention of title already applies. A legal challenge, especially when drafting general terms and conditions , is taking into account the interests of the other collateral takers and avoiding gagging the debtor. On the one secured party have on the prohibition of over-collateralisation of § 138 to respect the Civil Code, on the other hand, banks have about the security interest of the suppliers into account and limit the extent blanket.

Authorities in particular can easily enforce rights of separation through seizure (Section 50 InsO). They procure the required title for themselves and also deliver it themselves. In particular, tax offices and health insurance companies can use this way to encumber any remaining free assets of the debtor with special rights.

Last but not least, these extensive security interests lead to extremely low quotas for unsecured creditors.

Flat rate fees

The insolvency administrator receives a flat rate of 4 percent from the sale proceeds for the determination of the item to be segregated and the rights to it ( Section 171 (1) InsO), plus a further flat rate for the costs of the sale of a further 5 percent. Added to this is the value added tax of 19 percent if the recovery has resulted in a tax burden on the bankruptcy estate. If the exploitation costs actually incurred are significantly higher or lower than the lump sums, the costs actually incurred are to be recognized (Section 171 (2) sentence 2 InsO).

International

According to Swiss usage, segregation means the removal of assets from the bankruptcy estate “ex officio”. A rejection must be on the other hand requires the respective owners.

In Austria there is a regulation of separation in § 120 IO comparable to German insolvency law .

literature

Web links

Individual evidence

  1. ↑ Gabriele Grimm: Possessing security rights to movable property in European, German and Spanish insolvency proceedings , 2004, p. 70 ff. ( Online ).
  2. ↑ Stefan Smid: Loan Securities in Insolvency , 2008, p. 43 ( online ).
  3. ↑ Gabriele Grimm: Possessed security rights to movable property in European, German and Spanish insolvency proceedings , 2004, p. 95.
  4. ↑ Message on the Book Effects Act and the Hague Securities Convention (PDF; 792 kB) of November 15, 2006 ( BBl 2006, 9329).
  5. ↑ Marc Hunziker / Michel Pellascio: Repetitorium Debt Enforcement and Bankruptcy Law , p. 229.