Reason for bankruptcy
The German insolvency law recognizes three insolvency reasons that give rise to the opening of insolvency proceedings can be. These are insolvency ( Section 17 InsO ), impending insolvency ( Section 18 InsO) and over-indebtedness ( Section 19 InsO).
Insolvency
According to Section 17 (2) sentence 1 of the Insolvency Code, there is insolvency if the debtor is unable to meet the due payment obligations.
In 2005, the Federal Court of Justice (BGH) ruled that insolvency is to be presumed if the debtor is unable to meet at least 90% of his payment obligations due on the reference date within 3 weeks at the latest.
All due payment obligations are used to determine the insolvency. This also includes those monetary debts that have not yet been dunned, sued or enforced by the creditor , as well as overdrafts of current account credit lines . Not to be included in the due payment obligations are those payment obligations that have been voluntarily or involuntarily deferred by the obligee or that are currently not seriously claimed otherwise.
The sum of liquid funds includes all those that are available on the reference date, i.e. all account balances, cash on hand and also unused parts of existing credit lines.
If, in the case of the comparison of due payment obligations and liquid funds on the reporting date, there is a shortfall of more than 10%, then, as an exception, there is no insolvency if the liquidity gap can be eliminated within 3 weeks at the latest or reduced to less than 10%. In this respect, in addition to the funds that can be liquidated within 3 weeks (e.g. from incoming receivables), the payment obligations that increase in the same period (e.g. from current business, taxes or wages) must be taken into account.
If there is insolvency and the debtor is a legal person or a partnership without a fully liable natural person (e.g. GmbH & Co. KG ), there is a criminally relevant obligation to file for insolvency according to Section 15a InsO.
Impending insolvency
At the request of the debtor, insolvency proceedings can also be initiated if the insolvency has not yet occurred, but the debtor will probably not be able to meet the existing payment obligations when they become due ( threatened insolvency ; Section 18 (2) InsO).
As a rule, the financial plan should be used to assess this question .
Over-indebtedness
A legal entity in accordance with § 19 of the Insolvency Act, para. 1 also obliged to file for bankruptcy if it is over-indebted. Over-indebtedness exists when the assets no longer cover the existing liabilities; the same applies mutatis mutandis to a partnership in which no personally liable partner is a natural person. In order to clearly identify the over-indebtedness, the company concerned must draw up an over-indebtedness status as a special balance sheet . A company's assets can be determined according to two different principles.
Principle No. 1: The going concern balance
If it can be expected with a high degree of probability that the company will remain solvent in the next two years (positive going concern forecast), the so-called “going concern values” are to be used as a basis for the valuation of the assets and liabilities. A prerequisite for a going concern forecast is a documented corporate concept that is based on a careful analysis of the initial situation and perspectives and includes a financial and earnings plan as well as budgeted balance sheets.
If the going concern balance sheet shows that the assets cover the liabilities, there is no over-indebtedness. However, a positive going concern prognosis does not help if the company itself is over-indebted at going concern values. Then in any case there is overindebtedness that is subject to an application for insolvency.
Principle # 2: The liquidation balance sheet
If the financial plan shows that the company will not remain solvent at least until the end of the next financial year, the going concern forecast is negative. The over-indebtedness status must then be drawn up at liquidation values.
literature
- Literature on the reason for insolvency in the catalog of the German National Library
Individual evidence
- ↑ BGH, judgment of May 24, 2005, Az .: IX ZR 123/04 = BGHZ 163, 134
- ↑ Federal Court of Justice: judgment of December 19, 2017 - II ZR 88/16. December 19, 2017, accessed June 10, 2019 .
- ↑ MüKo Insolvency Code, Volume 1
