Own application
As own request in is insolvency proceedings of the opening of proceedings request addressed by the debtor designated. The bankruptcy code does not use the term.
The right to apply is not only available to creditors , but also to the debtor , Section 13 (1) sentence 2 InsO.
The self-application is an important setting for the further procedure:
The reason for the opening does not have to be made credible (important exception: Section 15 (2) InsO - the application is not made by all members of the representative body). Of course, the existence of the reason for opening will be examined by the insolvency court and the insolvency proceedings will not be opened if it is not, § 16 InsO. In the case of a creditor application, this is already inadmissible without substantiation of the reason for opening, so that the existence of a reason for opening is not even checked.
The own application can also be made in the event of impending insolvency , Section 18 (1) InsO. In the case of a claim from a creditor, the insolvency must have already occurred.
A timely self-application prevents liability due to the delay in bankruptcy , compare for the GmbH §§ 64 and 84 GmbHG .
In the case of a personal application, the debtor is generally barred from complaining about the opening of insolvency proceedings.
The debtor applied for the arrangement of the self-administration , so there is no need for a proper application for the approval of the creditors. The creditors can then only object to self-administration under the strict requirements of Section 272 (1) No. 1, No. 2 in conjunction with V. m. Paragraph 2 InsO.
The own application is a prerequisite for the application for discharge of residual debt , Section 287 (1) InsO. If a creditor has submitted the application for opening, the debtor requesting the discharge of the remaining debt must also submit a personal application. The bankruptcy court has to point this out to him. If there is no such notice, the isolated application for discharge of residual debt is exceptionally permissible. A personal application and an associated application for discharge of residual debt are also permissible if a creditor application was previously rejected for lack of assets.
In consumer insolvency proceedings according to §§ 304 ff. InsO, a series of obligations listed in § 305 InsO is imposed on the debtor in the case of an own application and the own application leads to a time extension of the kickback block according to § 88 para. 2 InsO.
literature
- AO Schmidt (Ed.): Hamburg Commentary on Insolvency Law . 2006
Individual evidence
- ↑ on the exceptions cf. Hamburger Commentary Schröder, § 34 Rn. 13.
- ↑ Federal Court of Justice (BGH), decision of December 1, 2005 , Az. IX ZB 186/05, full text.
