Even if the debtor becomes insolvent, there is still legal protection for creditors. The insolvency order regulates the orderly course of the insolvency proceedings, the debtor's prohibition of disposal, the creditors 'rights of contestation, the order of precedence for the satisfaction of creditors or the creditors' rights of segregation and segregation .
However, the actual creditor protection starts earlier. These are preventive legal regulations and supreme court case law, particularly in accounting and stock corporation law of the Commercial Code (HGB) and the Stock Corporation Act (AktG), which are intended to ensure that bankruptcy cannot even occur. The term creditor protection is not expressly mentioned in the BGB , HGB or AktG, but individual legal facts ensure compliance with this core principle.
The aim of creditor protection is not to completely relieve the creditor of his default risk , but to protect him from developments that are associated with an unacceptable increase in risk.
Risks of a Believer
Creditor protection is to be understood as the protection of the interests of persons who take credit risks or to whom the debtor is obliged to perform for other reasons. Creditor risks exist in the non-fulfillment of the contractually owed services (interest and repayments from loan agreements , but also purchase price debts from purchase agreements ) by the debtor. These risks can be divided into information risk, insolvency risk and loss risk.
- Information risk :
Danger for the creditor that he decides on a credit risk due to incomplete, falsified, delayed or missing information from the debtor , although he would not have granted a loan if he had better information.
- Bankruptcy Risk :
There is a risk for the obligee that the debtor's economic situation deteriorates to such an extent that he can no longer fulfill the contractually owed performance and insolvency proceedings are opened against the debtor's assets.
- Risk of loss :
Danger for the obligee that in the course of insolvency proceedings his claims cannot be fulfilled only partially or even completely.
It is precisely on these levels that various legal provisions attempt to protect the creditor by imposing certain behavioral obligations on the debtor or by prohibiting them.
Rules for the protection of creditors in the BGB
The BGB contains numerous rules for the protection of creditors. The general norm of good faith ) prevents the exercise of rights that contradicts one's own previous behavior. The debtor must then perform in good faith, i.e. in a form and time that can be expected from the obligee in accordance with the contract. At contract level, the BGB also enables the obligee to secure his claims by means of loan collateral , in order to give him the opportunity in the event of disruptions to satisfy himself with available loan collateral. With these loan collateral, the creditor gains privileges in the insolvency of his debtor, because his loan collateral is subject to the separate law of the bankruptcy code. If several persons are liable ( joint debtors and joint guarantors), this circumstance increases the security of creditors because they can choose any debtor or surety and demand payment of the entire claim from him.BGB (
For certain groups of creditors, the BGB provides for statutory liens that protect them. For example, the landlord has a statutory right of lien in accordance with BGB on all items brought into the rented space by the tenant to secure the unpaid rent claims. Similar regulations are provided for lessors ( (2) BGB), tenants ( BGB), contractors ( BGB) and innkeepers ( BGB). These are legal liens that apply automatically from the start of the contract and do not have to be agreed separately. They are intended to protect the obligee from default of his claim by granting him a right of lien on the contractual partner's property that has come under his control. If his claim is not paid, he can use the items subject to the lien according to the provisions of BGB. The supplier is the retention of title according to awarded BGB ownership of the delivered and unpaid goods until full payment. If the debtor does not pay for the goods received, or not in full, the supplier can demand them to be returned after withdrawing from the contract (§ Paragraph 2, BGB).
Rules for the protection of creditors in the HGB
According to Wöhe, the legislative task in accounting is to protect creditors from false information about the asset, financial and earnings position. With a given level of debt, it is crucial for the security of the creditors that the values stated for the assets in the balance sheet can at least be realized in their sales, which can be achieved by setting an upper limit for the valuation of the assets and a lower limit for debts ( Lowest value principle and highest value principle ). Great importance is attached to the protection of creditors in German accounting law , but it is subject to strong criticism internationally.
The central provision of creditor protection is the principle of prudence anchored in Paragraph 1 of the German Commercial Code ( HGB ) with its subsequent principles of implementation and imparity . Compliance with these ensures that a company does not present itself better in the balance sheet than it actually does. In doing so, it is accepted that, within the framework of the principle of prudence, a poorer balance sheet presentation is possible compared to reality. The principles of balance sheet clarity , balance sheet truth and balance sheet continuity are intended to guarantee the creditors the most reliable possible insight into the asset, financial and earnings position of a debtor, to ensure consistency in the balance sheet for comparison purposes and to ensure the completeness and correctness of the annual financial statements. Capital raising and capital maintenance regulations also ensure that the equity of a company liable to the creditor is brought into the company and is no longer paid back to the partner. Distribution blocks prevent the distribution of book profits that have not yet been realized. The auditing, auditing and disclosure obligations of annual financial statements, which are limited to corporations , also serve to protect creditors ( HGB).
Inwith the principle of completeness, only those assets may be capitalized that are also economically attributable to the owner ( (1) sentence 2 HGB). This ensures, within the framework of the creditor protection function, that only those assets are shown that can also serve as debt coverage potential for the creditors.
The HGB also provides for statutory liens for certain groups of creditors for their claims. Specifically, commission agents ( HGB), forwarding agents ( HGB), warehouse keepers ( HGB) and carriers ( HGB) are protected. These are also legal liens that apply automatically from the start of the contract and do not have to be agreed separately. The protection of creditors consists in protecting the obligee from the default of his claim by granting him a lien on the objects of the contracting party that have come into his sphere of control . For the legal liens contained in the HGB, the same provisions apply as for those listed in the BGB. In both cases of statutory liens, the list is exhaustive and cannot be expanded at will.
Creditor protection rules in the InsO
By authorities as federal , states , municipalities and municipal associations . In addition, institutions under public law and corporations under public law do not take part in the insolvency proceedings , which is regulated by state law ( ). This exemption of the public sector from the insolvency regime primarily serves to safeguard the public administration, whose work should not be disrupted by insolvency procedures. However, this also provides a certain protection for creditors, because lenders do not have to fear a loss of assets through insolvency proceedings. This general bankruptcy exemption is a core component of the municipal loan . Ultimately, creditor protection consists in the inability of these public legal forms to become insolvent because the creditor does not have to reckon with the consequences of insolvency proceedings.InsO much of the organized under public law area are exempt from bankruptcy proceedings. Are favored of which
Protection of creditors in company law
The acquisition of own shares is subject to the special restrictions of AktG due to the capital maintenance rules . As soon as a domination or profit and loss transfer agreement concluded between the parent company and the dependent subsidiary ends, the creditors of the dependent subsidiary are entitled to security from the parent company in accordance with (1) AktG, provided that their claims arose during the term of the company agreement . To do this, the affected creditors must report to the parent company within a preclusive period of 6 months. Instead of a security deposit, a guarantee from the parent company can be requested (Section 303 (3) AktG). The regulation entitled "creditor protection" is a grandfathering that is intended to grant the affected creditors protection of confidence if they have established claims against the subsidiary based on an existing company agreement and their claims are to continue without a company agreement. The purpose of § 303 AktG is to protect the creditors against the risk of insolvency of the dependent company with regard to claims that were established up to the termination of the control relationship. The creditors must therefore be treated as if their claims had been met on time.
Protection of creditors in the group
The Federal Court of Justice has partially closed the partially incomplete legal situation in the factual and qualified factual (GmbH) group through numerous rulings that protect creditors. Because the GmbHG in particular does not contain any independent group liability law like the AktG. The creditors of a GmbH group were also disadvantaged compared to the creditors of a corporation under stock corporation law. The loss assumption obligation also serves at least to compensate for the fact that the capital protection regulations are legally invalid in the contract group and in their actual effectiveness in the qualified factual group. The capital security rules serve to protect creditors and are therefore also fully applicable in a one-man company.
Protection of creditors with credit institutions
Credit institutions' creditors enjoy special protection with regard to their deposits. Depending on the amount, these are protected against bankruptcy of a bank through statutory and voluntary measures by means of deposit protection. This creditor protection is specified in the Deposit Protection Act , which applies in all EU member states and protects bank balances up to a coverage of 100,000 euros per investor and per credit institution. The Banking Act serves to safeguard the functionality of the credit institutions and thus ultimately also to protect creditors. The purpose of banking supervision is also to protect credit institutions' creditors through preventive and detective surveillance of the credit sector on the basis of a wide range of supervisory regulations.
Violation of bankruptcy protection provisions
If legal provisions serving to protect creditors are violated, this can lead to the invalidity of the annual financial statements. Annual financial statements that have already been adopted are (except in the cases of (3), (3) and (2) AktG) void if their content violates regulations that are exclusively or predominantly intended to protect the creditors of the Society are given ( (1) No. 1 AktG). The resolution at a general meeting of a stock corporation can be null and void if, for example, it is incompatible with the nature of the stock corporation or if its content violates regulations that are exclusively or predominantly provided to protect the company's creditors or otherwise in the public interest ( No. 3 AktG). As a result, the auditor's opinion has to be withdrawn, all recipients of the balance sheet and the audit report with an auditor’s certificate have to be informed of the invalidity of the balance sheet and the withdrawal of the auditor’s opinion and the annual financial statements disclosed to the commercial register have to be withdrawn or corrected.
Protection of creditors in Austria
As in Germany, the entire legislation that affects the law of obligations is shaped by the idea of protecting creditors (cf.ABGB, , , , , AktG).
Bankruptcy protection in the US and Canada
In German law, the term creditor protection includes safeguarding the interests of creditors. The opposite is understood by the term bankruptcy protection in the USA and Canada. Here, companies that have got into a corporate crisis are to be protected from their creditors. Both the US American bankruptcy law ( Chapter 11 Bankruptcy Code ) and the Canadian Companies Creditors Arrangement Act (CCAA) understand bankruptcy protection to mean protection from the claims and activities of creditors. The real point of Chapter 11 is to keep a company in trouble in financial difficulties. Under certain circumstances, debts are canceled for this purpose, the company can pass into the ownership of the creditors in order to maintain its business operations in order to ultimately still be able to realize the claims of the creditors as far as possible.
- Lars Franken: "Protection of creditors through US-GAAP accounting", Frankfurt am Main et al., 2001, pp. ISBN 3-631-37365-1 .
- Jens Petersen: "The protection of creditors in conversion law", Munich 2001, ISBN 3-406-48124-8 .
- Christoph Thole, Creditor Protection through Insolvency Law , 2010, p. 12.
- Herbert Wiedemann, Corporate Law Vol. I , p. 515 f.
- Günter Wöhe , Introduction to General Business Administration , 1990, p. 993.
- Günter Wöhe, Introduction to General Business Administration , 1990, p. 1042 f.
- Ernst Heymann / Norbert Horn, Commentary HGB , 1999, p. 39.
- BT-Drs. 16/10067 of July 30, 2008, p. 47.
- Ernst Heymann / Norbert Horn, Commentary HGB , 1999, p. 646.
- BGHZ 115, 187.
- cf. for many: Frederik Karsten, creditor protection in company law , in: Neue Justiz 9/2006, pp. 385–392 (PDF; 220 kB)
- BGHZ 107, 7, 18.