Self-administration

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The self-administration is, according to the ff §§ 270th of the German Insolvency Act (InsO) the ability of a debtor, the bankruptcy estate under the supervision of a trustee to manage itself and to dispose of them. The self-administering debtor becomes, as it were, an insolvency administrator on his own behalf.

Since an amendment to the insolvency regulation in 2012 by the Act to Further Facilitate the Reorganization of Companies ( ESUG ), this special type of insolvency procedure has been used much more frequently. In medium and large insolvency cases in particular, self-administration has now found its place in German insolvency and restructuring practice. A special case of (provisional) self-administration is the protective shield procedure regulated in Section 270b InsO .

The sense of self-administration is the use of the existing entrepreneurial know-how in the restructuring , provided that the insolvent company or its management did not discredit itself through mismanagement before the insolvency .

Procedure and requirements

The InsO only regulates the prerequisites for ordering self-administration in a very rudimentary way. According to Section 270 (2) InsO, the ordering of self-administration only requires

1. that it has been requested by the debtor and 2. that no circumstances are known which lead to the expectation that the arrangement will lead to disadvantages for the creditors.

The core of the insolvency court's examination of whether self-administration is to be ordered is the so-called disadvantage prognosis provided for in Section 270 (2) No. 2 InsO. If a provisional creditors' committee is unanimously in favor of ordering self-administration, self-administration is not considered to be disadvantageous (cf. § 270 Paragraph 3 InsO).

The prerequisite for self-administration is therefore the consent of the creditors and / or a positive review by the bankruptcy court . Since the insolvent company is ultimately its own "insolvency administrator" in self-administration, self-administration always requires insolvency law know-how as a basic requirement. Therefore, an experienced insolvency administrator or restructuring expert is often appointed to the management of the company for the duration of the proceedings ; otherwise, at least ongoing advice on insolvency law will be required. In addition, certain cases will be ruled out for self-administration, especially if there is justified mistrust in the management, e.g. B.

  • if the bankruptcy is obviously being delayed (e.g. in cases of significant arrears to social security agencies or tax offices),
  • in the event of a breach of accounting obligations (e.g. accounting arrears lasting several months) or
  • if key business partners are unwilling to continue working with the company.

Unless there is a unanimous decision by the creditors' committee, the insolvency court must decide in each individual case whether, according to its findings, disadvantages are to be feared (with the result of a rejection of self-administration) or not (then order of self-administration).

Distribution of tasks between self-administration and trustee

In contrast to the regular insolvency procedure, the debtor retains his power of disposal in self-administration . The debtor is thus civil procedural law still active- and passive legitimacy ; administrative acts may be issued against him . In addition, the liability and criminal liability of the entrepreneur or managing director remains in effect.

The legal position of the managing director as the legal representative of the debtor and his administrative and disposal authority in the external relationship is not restricted by the order of self-administration.

The insolvent company or self-administration - understood as a unit of insolvent company and its advisors - has to perform the tasks of an insolvency administrator in many areas in the self-administration procedure. In particular, the insolvent company has the following rights, but also obligations:

  • Management of ongoing business including entering into liabilities,
  • Exercise of restructuring instruments under insolvency law, e.g. B. Performance options according to §§ 103 ff. InsO or special termination rights according to § 109 InsO,
  • Exercise of exploitation and usage rights with regard to items encumbered with special rights (Section 282 InsO),
  • Submission of the insolvency law accounts to the court (Section 281 InsO),
  • Submission of the report to the creditors' meeting (Section 281 InsO).

On the other hand, if self-administration is ordered, the insolvent company is subject to ongoing control by the administrator, who has the following tasks:

  • ongoing monitoring of the management and the economic situation of the company as well as - in the case of natural persons - the living expenses (§ 274 para. 2 InsO);
  • Participation in entering into obligations by agreeing to extraordinary obligations and by (not) raising objections to transactions of a normal size ( Section 275 InsO);
  • Authorization to take over account and cash management (Section 275 (2) InsO);
  • according to the rulings of the Federal Court of Justice advisory support for self-administration and early involvement in essential (restructuring) measures,
  • Exercise of special powers under insolvency law, which are transferred to the trustee in the interest of the creditors, in particular assertion of insolvency avoidance and liability claims (Section 280 InsO),
  • in the event that the creditors are at risk, the obligation to immediately notify the creditors' committee and the bankruptcy court of the adverse effects (Section 274 (3) InsO).

A prerequisite for successful and purposeful self-administration is, due to the close connection between the tasks of self-administration on the one hand and the administrator, on the other hand, usually a constructive cooperation between the company, consultants and administrators, whereby the administrator is independent of any close cooperation, nevertheless, for the critical monitoring of the company in the interests of the company Obligee.

Procedural objective

Although the InsO does not necessarily require this, a restructuring is regularly sought with self-administration. In conjunction with an insolvency plan ( Section 284 InsO), self-administration can contribute to maintaining the company (e.g. also in the special constellation of the protective shield procedure Section 270b InsO). Alternatively, a company sale from the bankruptcy estate by way of the so-called "transferring restructuring" or mixed forms between the sale and the insolvency plan can also be considered in the event of a self-administration order.

End of self-administration and transition to the standard insolvency procedure

Self-administration ends with the repeal of the self-administration order in the cases mentioned in Section 272 InsO:

  • at the request of the head and claim sum majority of the creditors' meeting (Section 272, Paragraph 1, No. 1 InsO),
  • at the request of a person entitled to segregation or insolvency creditor, provided that self-administration has become disadvantageous for the creditors and the applicant is threatened with considerable disadvantages (Section 272 (1) No. 2 InsO) or
  • at the request of the insolvent company (Section 272 Paragraph 1 No. 3 InsO).

Simultaneously with the repeal of the self-administration order, the insolvency court has to appoint an insolvency administrator, whereby the previous administrator can be appointed as an insolvency administrator in accordance with Section 272 (3) InsO, which is the rule in practice. With the appointment of the insolvency administrator, the insolvency proceedings are continued as regular insolvency proceedings.

Regardless of this, self-administration necessarily ends with the cancellation or suspension of the insolvency proceedings.

Significant self-administration procedures

In the following insolvency cases in recent years, self-administration or provisional self-administration was ordered - at least temporarily:

literature

  • Matthias Hofmann: self-administration. (= ZIP practical book. 1). 2., rework. Edition. RWS-Verlag, Cologne 2016, ISBN 978-3-8145-9021-9 .
  • Bruno Kübler (Ed.): HRI - Handbook Restructuring in Insolvency. Self-administration and insolvency plan. 3., rework. Edition. RWS-Verlag, Cologne 2019, ISBN 978-3-8145-1016-3 .
  • Andreas Möhlenkamp, ​​Dirk Andres: Self-administration in insolvency. When yes, when no? 1st edition. Walhalla Fachverlag, Regensburg 2013, ISBN 978-3-8029-3584-8 .
  • Dominik König: Liability in self-administration. 1st edition. Mohr Siebeck, Tübingen 2015, ISBN 978-3-16-153965-7 .

Individual evidence

  1. ↑ Insolvency under self-administration: when does it make sense? In: Deutscher Anwaltspiegel. March 11, 2015, loaded on February 28, 2018.
  2. ↑ Six years of ESUG - breakthrough achieved. Retrieved April 24, 2019 .
  3. ↑ Annerose Tashiro In: Eberhard Braun: Insolvenzordnung (InsO), InsO with EuInsVO (new version), comment. 7th, revised edition. CH Beck, 2017, ISBN 978-3-406-69675-6 , commentary; EuInsVO 2017 Art. 22 Rn. 14-17.
  4. ↑ See for the order of provisional self-administration: Friedrich L. Cranshaw: Comment on BGH 9th civil senate, judgment of April 26, 2018 - IX ZR 238/17 in: jurisPR-InsR 13/2018 note 1.
  5. ↑ Boeker, in: Hübschmann / Hepp / Spitaler, AO / FGO, 240th delivery 11.2016, § 69 AO marginal note 41e.
  6. ^ Resolution of the IX. Civil Senate of July 21, 2016 - IX ZB 70/14 -. Retrieved June 13, 2019 .
  7. ↑ Leaflet on self-administration (PDF; 13 kB). Neuruppin District Court. Retrieved October 15, 2013.