Opening reason
According to Section 16 of the Insolvency Code (InsO), insolvency proceedings are only opened if there is a reason for opening . The reasons for opening are defined in § 17 to § 19 InsO. these are
- Insolvency , § 17 InsO;
- Imminent insolvency (only with personal application ), § 18 InsO;
- Over-indebtedness , Section 19 InsO. In principle, over-indebtedness is only a reason for opening in the case of legal entities, but see Section 19 (3) InsO, which also includes the GmbH & Co. KG .
In simple terms, insolvency means that the debtor is not in a position to meet the due liabilities with his liquid funds and this situation is likely not only temporary, i.e. will last for more than just a few weeks. In theory, the debtor's assets can far exceed his liabilities. In such a case, however, the debtor will be able to take out a loan. As a result of a debt rescheduling, the due date is postponed.
The impending insolvency within the meaning of Section 18 InsO does not trigger the obligation to file for insolvency, for example under Section 64 GmbHG . However, the management must then pay close attention to the occurrence of insolvency.
Over-indebtedness means that the total (not just the due) liabilities exceed the assets. The valuation of the assets is problematic, because a distinction must be made between break-up and going concern values, Section 19 (2) InsO.
After filing for insolvency, the insolvency court usually first issues a resolution that does not already open the insolvency proceedings, but instead first instructs an expert to examine, among other things, the reason for the opening. The preliminary insolvency administrator is often entrusted with this task . This usually provides the bankruptcy court with an opinion on whether
- 1. the continuation of the company is possible,
- 2. whether there is a reason for opening based on the result of 1.,
- 3. Whether the costs of the insolvency proceedings can be covered from the bankruptcy estate ( Section 35 InsO).
Elimination of the reason for opening
The reason for the opening can be omitted during the examination of the expert, the applicant can then declare his application to be settled, § 4 InsO i. V. m. § 91a ZPO or withdraw, § 4 InsO i. V. m. Section 269 ZPO. In the latter case, the applicant always bears the costs. If the creditor has withdrawn his application because he was satisfied by the debtor to avoid bankruptcy, the creditor is threatening in the case of a possible next process - for example, at the instigation of another creditor - the risk of insolvency contesting .
If the reason for opening does not cease to exist until after insolvency proceedings have been opened, the procedure according to Section 212 f. InsO can be set. In this case, the opening application will not be subsequently rejected. The decisive point in time for the existence of the reason for opening is the decision on the opening of insolvency proceedings by the insolvency court, so that changes to the factual and legal situation are still conceivable after the expert opinion has been drawn up.
literature
- Hamburg Commentary on Insolvency Law (Ed .: AO Schmidt), 2006
