Separation right
Separation is a term from insolvency law that describes the removal of property or rights from the bankruptcy estate at the request of an authorized person.
General
German insolvency law is governed by the principle of equal satisfaction for creditors ( par conditio creditorum ). However, this principle is often broken. The law divides the creditor in separation legitimate ( § 47 InsO ) secretion legitimate (§ § 49 ff. InsO), offsetting legitimate (§ § 94 bis 96 InsO), mass creditor (§ § 53 ff. InsO) and other creditors. The other creditors are the actual bankruptcy creditors ; they are not treated equally either. In principle, the insolvency regulation recognizes a class of insolvency creditors ( Section 38 InsO) and only provides for subordinate insolvency creditors for an exceptional area ( Section 39 InsO).
The aim of a creditor who can order real securities is to acquire segregation or segregation rights. With the right to segregation, the item can be withdrawn from the insolvency proceedings as a whole. The real securities give the obligee the opportunity to either withdraw the relevant object from individual or total enforcement (§§ 771 ZPO, 47 InsO) or to request advance satisfaction from the proceeds for the specific object (§§ 805 ZPO , 49 ff. InsO ).
Separation aims at the non-affiliation of a thing / a right to the bankruptcy estate, while separation is aimed at preferential satisfaction from the mass.
Elimination ability
Anyone who can assert on the basis of a real or personal right that an object that has been used as a mass does not actually belong to the bankruptcy estate, requests segregation. Such persons entitled to segregation are not insolvency creditors because they do not demand satisfaction from the masses, but on the contrary bring about a settlement of the masses.
In particular, property , simple conditional property (if the insolvency administrator of the conditional buyer is no longer entitled to possession; § 986 BGB ), possession (if there is a right to repossession of the property; § 861 BGB), inheritance claim, contractual obligation to surrender (e.g. . on the return of the rented property, on the return of custody items; § § 1004 , § 1007 BGB), restricted right in rem (if the right itself forms the object of the segregation and not the thing or the right on which the right in rem is based). The security property regularly entitles the security provider to segregation in the insolvency of the security buyer . The collateral taker is only entitled to segregation if the insolvency debtor is not the collateral provider. Otherwise - and this is the rule - the collateral taker only has a right of separation ( Section 51 No. 1 InsO).
However, there is no right of separation in the case of purely procurement claims, such as the buyer's claim against the seller for transfer of ownership of the purchased item in accordance with Section 433 (1) BGB. There is only an obligation transaction and no fulfillment transaction. Even if the buyer has already paid the purchase price, the buyer is only a bankruptcy creditor and joins the ranks of the other, unsecured bankruptcy creditors.
Procedure
Anyone who, on the basis of one of the above-mentioned real or personal rights, can assert that an object in the possession of the insolvency debtor does not belong to the bankruptcy estate is not a bankruptcy creditor and does not participate in the bankruptcy proceedings (Section 47 InsO). He is therefore entitled to surrender the item against the insolvency administrator outside of the actual insolvency proceedings. The segregation is therefore due to the fact that an object does not belong to the bankruptcy estate, but the insolvency administrator initially counts the object as part of the insolvency estate through possession or use ("mass bias"). An object is subject to mass if the insolvency administrator exercises possession of it or claims the right to use the object for the masses and to decide whether, when and in what way to return it to the owner. If these exceptions do not exist, a right to surrender against the administrator is ruled out. The right of segregation corresponds to the third party action for individual enforcement (§ 771 ZPO).
In order to be able to assert an effective separation claim against the insolvency administrator, the person entitled to separation must initiate the following steps:
- Application to the insolvency administrator,
- Evidence of the claimant's eligibility for disposal and
- Presence of a thing that can be segregated or a right.
The person entitled to segregation may not enter the business or storage rooms of the insolvency debtor to view his items against the will of the insolvency administrator. The insolvency administrator, however, is obliged to provide full information. The right to segregation is determined by the laws that apply outside of insolvency proceedings (Section 47 sentence 2 InsO). Accordingly, the creditor entitled to separate can only pursue his claim within the framework of the civil law provisions.
consequences
After examination, the insolvency administrator will hand over the item entitled to segregation to the authorized person. This does not reduce the bankruptcy estate because the item was not part of it from the start. If, on the other hand, the insolvency administrator refuses to fulfill the claim, the claim for separation will be enforced according to general civil procedure law. The right to segregation can be secured by an interim injunction (e.g. by a ban on sale or confiscation). In the case of foreclosure , the person authorized to separate is entitled to a third party action according to § 771 ZPO.
If an item entitled to segregation was unjustifiably sold by the debtor before the opening of insolvency proceedings or after the opening of the insolvency administrator, the person entitled to segregation can demand the assignment of the right to the consideration in accordance with Section 48 InsO, provided this is still outstanding. If the consideration has already been provided, he can request that the consideration be removed from the bankruptcy estate, provided it is still distinguishable in terms of the amount (replacement separation).
See also
Individual evidence
- ↑ for example if the supplier withdraws from the contract
- ↑ for example if a bank with securities custody becomes insolvent
- ↑ BGHZ 148, 252, 260; BGH NZI 2008, 554, 555 Rn. 14 f.
- ↑ BGHZ 127, 156, 161
