Bankruptcy plan
The insolvency plan in German law is a restructuring plan within the framework of insolvency proceedings . It serves to maintain a company as such in insolvency proceedings and is based on the specific requirements of the bankruptcy code . The insolvency plan is specifically regulated in Sections 217–269 InsO.
In the coming years, the insolvency plan will compete with the restructuring plan in a pre-insolvency or insolvency-avoidance restructuring procedure on the basis of the EU restructuring directive, which the German legislature has yet to create , although the specific form of the German implementation of the directive is not yet known.
construction
The insolvency plan itself consists of two parts: the performing and the creative part. In certain cases, the InsO also provides for mandatory annexes to the insolvency plan, although further investments are also possible on a voluntary basis.
Performing part
The descriptive part describes the aim of the insolvency plan and serves to inform those involved ( Section 220 InsO). It names the services to be provided by the company and other parties involved, for example the creditors or employees . On the basis of a precise analysis of the current situation, a solid plan calculation is developed in the context of the performing part. This usually covers the three following years after the end of the insolvency proceedings. Any alternatives to the insolvency plan must also be shown. The intended reorganization can also be compared with the consequences of a standard bankruptcy. The performing part is intended to enable the creditors to decide whether to agree to the plan.
Formative part
The formative part of the insolvency plan regulates how the legal position of the parties involved is to be changed by the plan ( Section 221 InsO). According to Section 254, Paragraph 1 of the InsO, when the confirmation of the insolvency plan becomes final, the provisions laid down in the creative part for and against all parties involved. This also applies to insolvency creditors who have not registered their claims or to those involved who have objected to the insolvency plan ( Section 254b InsO). According to § 257 InsO, the insolvency plan can also be enforced against the debtor. Therefore, the explanations in the creative part must be sufficiently specific.
Plan systems
If the insolvency plan provides that the creditors should receive payments from future income, the insolvency plan must be attached to the insolvency plan in accordance with Section 229 InsO as mandatory attachments, as well as an overview of assets and an income and financial plan for the relevant period.
The following declarations are also mandatory in the relevant cases:
- if an insolvency plan not submitted by the debtor provides for the debtor to continue the company and the debtor is a natural person or a partnership, a declaration by the debtor or the personally liable partner that he is willing to continue the company ( Section 230 para. 1 InsO);
- in the case of a debt-equity swap, the affirmative declaration of every creditor who is to take over share rights ( Section 230 (2) InsO);
- when accepting obligations from third parties, its declaration ( Section 230 Paragraph 3 InsO).
In addition, in many cases, optional attachments to the insolvency plan come into consideration, e.g. B. arithmetic works to which the performing part refers, lists of creditor claims using the data of the insolvency table u. Ä.
Aim and areas of application
The regulations on the insolvency plan apply to companies and consumers. The aim of the company's insolvency plan is to stabilize and continue it through restructuring. As part of the insolvency plan, the creditors waive parts of their claims with the expectation that the company will service all claims in the future. The insolvency plan is the instrument under insolvency law for the financial restructuring of companies and for clearing up over-indebtedness. In practice, the insolvency plan also enables debt waivers to be enforced against the will of individual creditors. In practice, the insolvency plan plays a role , especially in cases of self-administration (including the special constellation of protective shield proceedings ).
Since a reform of the Insolvency Code in 2014, the filing of an insolvency plan has also been permitted for consumers. This enables a simplified and accelerated termination of the insolvency proceedings. The insolvency plan for consumers offers the opportunity to shorten the insolvency process and achieve discharge of residual debt within a period of 3 to 6 months. In addition, the insolvency plan also enables an exemption from such debts that would be legally excluded from a residual debt discharge, for example from claims from deliberately committed unlawful acts.
literature
- Dietmar Rendels, Karsten Zabel: Insolvency Plan. ZIP-Praxisbuch 3, 2., revised. Edition 2015, RWS Verlag, Cologne, ISBN 978-3-8145-9017-2 .
- Bruno Kübler (Ed.): HRI - Handbook Restructuring in Insolvency. Self-administration and insolvency plan , 3rd edit. Edition, RWS-Verlag, Cologne 2019, ISBN 978-3-8145-1016-3 .
Individual evidence
- ↑ Insolvency Ordinance Section 220 . dejure - German and European laws. Retrieved October 10, 2013.
- ↑ Andreas Wähnert at http://www.insolvenzplan.expert