Insolvency Law (Germany)
The bankruptcy law in Germany is the jurisdiction of the German civil law focused on substantive and procedural legal field with the rights of creditors in case of insolvency of the debtor concerned. Insolvency ( Latin insolvency, "non-solving", here in the sense of: "not able to redeem promissory notes"), colloquially in Germany also bankruptcy, bankruptcy or bankruptcy , is the inability of a debtor to meet his payment obligations to the creditor. Insolvency is characterized by acute or imminent insolvency and over-indebtedness .
The aim of insolvency proceedings is either to restore the debtor's solvency or to settle the situation in an orderly manner. In the case of insolvent companies, the latter takes place through the sale of companies by way of the so-called transferring restructuring, by way of the insolvency plan or by way of liquidation through company dissolution , in the case of individuals ultimately through discharge of residual debt .
The primary goal of insolvency proceedings is, in accordance with Insolvency Code (InsO), to meet the demands of the debtor's creditors by realizing the attachable debtor's assets, the so-called insolvency estate. This satisfaction of creditors is generally carried out jointly: The purpose of the procedure is to pay off at least a small proportion of their claims to all creditors, which is why they should be treated largely equally according to the principle par conditio creditorum . In order to prevent a few creditors from quickly consuming the last remaining assets of the debtor, while no assets are left for the others, the insolvency procedure therefore prohibits the individual creditors from independently enforcing the debtor's assets in favor of a coordinated overall enforcement .Clause 1 of the
In addition to the satisfaction of creditors, the aim of insolvency proceedings is to give insolvent natural persons the opportunity to start over economically. For this purpose, the insolvency proceedings can be followed by a discharge of residual debts, which leads to the debtor being released from his outstanding liabilities, for which he is responsible after the end of the proceedings in accordance with InsO.
If the debtor is a company, it should be restructured as far as possible. In contrast to the satisfaction of creditors and the possibility of a new economic start, this is not a target of the InsO, but the legislature has expressed the desire for restructuring in numerous places. This gained in importance in particular through the Law to Further Facilitate the Restructuring of Companies (ESUG) of 2012, which aimed to strengthen restructuring instruments and opportunities as well as strengthening the position of creditors. However, the insolvency proceedings also aim to exclude the financially unstable from the market, since their excessive financial demands endanger other market participants.
The legislature wanted to give employees special protection against the consequences of insolvency proceedings on the assets of their employer . The claim to insolvency money is intended to protect them against loss of wages due to bankruptcy . This compensates for missing wage payments for up to three months of their employment until the opening of the procedure or until the rejection of the application to open the procedure due to a lack of insolvency assets ( InsO). A rescue company can serve to prevent insolvency or to continue business operations during the course of insolvency proceedings.
The InsO knows different insolvency procedures. According to §11 InsO, debtors can be natural persons, legal persons , for example stock corporations and registered associations , as well as companies without legal personality , for example general trading companies . For natural persons who are not currently self-employed or who were self-employed and whose financial circumstances are considered manageable (fewer than 20 creditors) and for whom no creditor is asserting claims from employment relationships, the consumer insolvency procedure is used in accordance with (2) InsO , which contains some simplifications. The so-called standard insolvency procedure , which applies to the self-employed and freelancers, is similar . The insolvency plan procedure is a procedure specifically aimed at restructuring the debtor company . Self-administration and protective shield proceedings go in a similar direction .
Current legal sources of insolvency law in Germany are the Insolvency Code and its Introductory Act (EGInsO). Also of importance are Regulation (EC) No. 1346/2000 on insolvency proceedings , which regulates questions of jurisdiction , applicable law and the recognition of decisions by foreign insolvency courts , as well as Of the German Civil Code (BGB), which in addition to the InsO contains provisions for bankruptcy proceedings on the estate .
In Germany, the general bankruptcy law applied until the bankruptcy code was introduced. After the establishment of the German Empire, a uniform bankruptcy code (KO) was issued in 1877 , which was created under the influence of a draft from 1873 by the Prussian Ministry of Justice for a German public debt system. The focus was on the satisfaction of the creditors. On February 26, 1935, the settlement order was added as a reaction to the consequences of the global economic crisis . On March 29, 1991, the general enforcement order was added, which regulated the bankruptcy law in the new federal states.
The problem under this legal situation was that a large part of the applications to open proceedings had to be rejected due to mass poverty: Often there was not even enough bankruptcy estate to at least cover the costs of the proceedings. If it is not possible to cover these, proceedings could not be opened. Likewise, about a fifth of the proceedings that had been opened had to be subsequently discontinued because the procedural costs exceeded the mass, i.e. there was a mass inadequacy . If a procedure was concluded, the insolvency rate was mostly meager at only a few percent. In order to counter these problems, the legislature decided on a comprehensive reform of the insolvency law, which began in 1978 with the convening of a commission to reform German insolvency law.
On January 1, 1999, the InsO finally came into force, which replaced the previous procedural rules. In order to curb the problem of frequent mass poverty, the legislature created incentives for filing for bankruptcy early. He also expanded the possibilities of the administrator to contest actions damaging the masses, so that he can add assets to the masses to a greater extent than before. To protect natural persons from living at the subsistence level, but also to create an incentive for them to strive to satisfy their creditors, the legislature introduced the discharge of residual debt. Furthermore, the creditors should determine the course of the proceedings to a greater extent. After the InsO came into force, the number of insolvency proceedings opened rose by around a third. In 2010, 168,458 proceedings were requested, which is the highest level so far. The numbers have been falling since 2011. In 2012, the insolvency law underwent some extensive changes within the framework of the law to facilitate the restructuring of corporate insolvencies. In 2014, some adjustments to the residual debt discharge procedure followed. In 2017, the regulations on filing for insolvency (InsO) and contesting insolvency ( InsO) were expanded.
- Statistical data
Source: Federal Statistical Office
International comparison: Rigmar Osterkamp's DICE Report 2006 examined personal bankruptcies in selected OECD countries.
Application for opening
According to companies with limited liability and stock corporations , as well as companies without legal personality, for example general partnerships , limited partnerships and companies under civil law . An application can also be made to open insolvency proceedings on the estate of a deceased person in the form of estate insolvency proceedings . The application is to be submitted to the competent local court as an insolvency court ( , InsO). Those local courts in whose district a regional court has its seat come into consideration as insolvency courts .(1) Sentence 1 InsO, insolvency proceedings over the assets of a debtor are only initiated upon application. As possible debtors in insolvency proceedings, §11 InsO names natural and legal persons, for example
The debtor and his / her creditors are entitled to file an application for insolvency in accordance with Section 13 (1) InsO. In the case of legal persons and companies without legal personality, every member of the representative body ( managing director , board of directors ) as well as every personally liable partner is entitled to apply. According to InsO, legal persons and companies without legal personality in which no partner is personally liable, such as a GmbH & Co. KG , even have an obligation to submit an application for insolvency in good time. This is due to the fact that in such companies the creditors only have a limited amount of liability at their disposal, as no partner involved is personally liable. Each managing director is primarily required to apply individually. Violations of the obligation to submit an application can lead to liability for damages and be punishable by law. There is an obligation to file for insolvency if the company has the reasons for insolvency ( InsO) or overindebtedness ( InsO). If this is the case, the opening application must be submitted immediately, i.e. without undue delay, but at the latest within three weeks. In the event of the company's lack of leadership, the shareholders are obliged to submit the application themselves in accordance with Section 15a (3) InsO.
There is basically no obligation to apply for natural persons, such as sole proprietorships. However, standards outside of the InsO can also prescribe an obligation to apply for natural persons. This is the case, for example, with heirs who, in accordance with obligation , can ultimately arise from the fact that creditors can apply for refusal of discharge of residual debt in accordance with (1) No. 4 InsO if they are due to a delayed application or have been disadvantaged in any other way.BGB, have to apply for bankruptcy proceedings in the event of overindebtedness or insolvency of the estate. In order to avoid disadvantages on the part of the debtor, however, a de facto obligation, i.e. an
The reasons for bankruptcy
Insolvency, Section 17 InsO
Section 17 (2) sentence 1 InsO defines insolvency as the inability to meet one's own due liabilities. Such an inability exists when the debtor's payment obligations exceed his available or easily procured means of payment. Since the existence of a reason for insolvency and the associated risk of filing for insolvency place a significant burden on the debtor concerned, the characteristic of the due date is interpreted restrictively: in the starting point, the due date is based on the provisions of the BGB, but the claim must also be serious from its owner be demanded. This is the case when the obligee has expressed the claim to demand the fulfillment of his claim. This excludes claims that are deferred or whose non-fulfillment is initially tacitly tolerated. In order to differentiate the insolvency from a temporary suspension of payments, the value of the unfulfilled liabilities must be at least 10% of the total liabilities. In addition, this lack of liquidity must exist for at least three weeks.
According to Section 17 (2) sentence 2 InsO, the debtor's insolvency is rebuttably presumed if he has stopped making payments. Such a suspension of payments exists if the behavior of the debtor clearly results in the persistent inability to pay a substantial part of his due and claimed debts.
While in times of bankruptcy the insolvency was of no importance for natural persons, this is now also of importance for this group of people taking into account the consumer insolvency. In addition, there is a risk of criminal fraud if a person continues to enter into legal obligations despite the inability to pay.
Impending insolvency, Section 18 InsO
As a special reason for insolvency, the debtor has the option of imminent insolvency according toInsO. With this regulation, the legislature aimed to give the debtor an incentive to file for bankruptcy as early as possible in order to promote an effective procedure. The debtor's creditors are barred from this reason for insolvency in order to prevent them from putting their debtor under pressure with the threat of a prognosis-based bankruptcy petition. The proportion of applications that relate to this reason for opening is extremely low at around 1%.
An application for impending insolvency is justified in accordance with Section 18 (2) InsO if the debtor can foresee that his means of payment, including all credit lines and comparable assets, will not be sufficient to meet his liabilities within a foreseeable period of time. The law does not specify the duration of this forecast period, which is why different proposals are made in science and jurisprudence. Sometimes periods of no more than three to six months, and sometimes longer periods, are considered appropriate. Current case law assumes that this period may not exceed twelve months. The more recent case law of the BGH requires that appropriate evidence must be submitted with the application.
Over-indebtedness, Section 19 InsO
The opening reason for overindebtedness regulated in Section 19 InsO only applies to legal entities or partnerships in which no shareholder is a natural person. Like the obligation to file for insolvency from Section 15a InsO, this additional reason for opening results from the fact that the creditors only have a limited amount of liability available for the types of company covered.
According to Section 19 (2) sentence 1 InsO, the debtor is over-indebted if his assets no longer cover the existing liabilities. This arithmetical over-indebtedness is determined by drawing up an over-indebtedness balance sheet in which the debtor's liabilities and assets are compared. When assessing the latter, the break-up values are applied, i.e. the value that would result from the sale of the debtor's assets. Following this, a prognosis about the success of a possible continuation of the company must be made. If this continuation forecast turns out to be positive, i.e. it can be assumed that the company will stabilize in the near future, the reason for insolvency of over-indebtedness does not exist despite the arithmetical over-indebtedness. If, on the other hand, it turns out negative, the reason for the opening is given.
Until October 2008, the going concern forecast was not a prerequisite for the reason for opening. Instead, it enabled the assets to be valued not with the liquidation but with the going concern values. As part of the financial market crisis , the Federal Cabinet passed a number of changes to the law in mid-October 2008, which came into force on November 1 through the Act to Modernize GmbH Law and Combat Abuse (MoMiG). This also included a new version of Section 19 InsO, initially limited in time, in order to prevent numerous companies whose assets had lost value due to the crisis from falling into insolvency, as they were based on both liquidation and going concern values despite good prospects for going concern were overindebted in the balance sheet.
The bankruptcy court, in which the bankruptcy judge is responsible until the opening of the bankruptcy proceedings, examines the application for admissibility and merits.
The admissibility is based on the general process requirements. With regard to procedural procedural regulations, Code of Civil Procedure (ZPO), which applies unless the InsO stipulates otherwise. A special feature of the InsO regulates : Here the legislature has stipulated that the bankruptcy court has to determine ex officio whether there are grounds for bankruptcy if there is an application to open insolvency proceedings that are not to be rejected as obviously unfounded . In contrast to conventional civil proceedings, in which the competent court is fundamentally bound by the factual presentation and the evidence offered by the parties (so-called principle of presentation ), there is an official investigation obligation in insolvency proceedings . The bankruptcy court therefore determines the necessary facts itself or, if necessary, with the involvement of an expert (appraiser). Despite the existing official investigation obligation, the disposition maxim applies in the application process, i.e. in the phase between the insolvency application and the decision on the insolvency application, so that the insolvency application can be withdrawn by the applicant until a decision is made (§§ 4 InsO, 269 ZPO).InsO refers to the
As part of the application review, the court examines the following requirements in particular:
- the debtor's ability to become insolvent (Section 11 InsO),
- the right to apply, whereby both the debtor and every creditor are entitled to apply (Section 13 (1) sentence 2 InsO), and
- in the case of an application by a creditor, the credibility of the claim and the reason for the opening ( InsO).
If the application is admissible, the debtor must be heard by the insolvency court in accordance with Section 14 (2) InsO.
The request is justified if
- there is a decisive opening reason for the legal form of the debtor and
- the insolvency estate covers the procedural costs ( InsO).
The general reason for opening is insolvency (§17 InsO) and - if the application is made by the debtor - the impending insolvency (§18 InsO). Over-indebtedness (Section 19 InsO) is also a reason for insolvency in those cases in which the debtor is a legal person; over-indebtedness also applies to partnerships whose personally liable partners do not include a natural person (Section 19 (3) InsO). If there is no opening reason, the bankruptcy court rejects the bankruptcy petition as unfounded.
Insolvency estate is the entire assets that belong to the debtor at the time of opening and that he acquired during the proceedings ( rejected due to lack of assets .InsO). If the mass does not cover the procedural costs, a natural person can apply for a deferral of costs ( InsO). If this is approved, the costs of the procedure are borne by the state treasury and the procedure is opened. It is also conceivable to make an advance on procedural costs. Otherwise the opening application will be
If the bankruptcy court is not in a position to decide on the basis of its own findings about an existing application to open insolvency proceedings, it will commission an expert or expert to examine whether the requirements for opening insolvency proceedings - in particular a reason for insolvency and a for Sufficient insolvency assets to cover the procedural costs are available. The appraiser appointed by the insolvency court is regularly one of the insolvency administrators appointed by the respective insolvency court, since the appraiser - in the event that proceedings are opened - is usually appointed as the insolvency administrator.
In most cases, the appraiser is also commissioned or is expected to check in advance whether security measures are required, e.g. B. the appointment of a preliminary insolvency administrator. This part of the job should be completed within a short period of time. At this point in the procedure, it is important to determine very quickly whether and which security measures are required to protect the future bankruptcy estate from losses caused by the debtor's dispositions.
The contents of the so-called insolvency report are regularly an overview of the previous development of the debtor's company and the causes of the crisis, a description of assets and debts taking into account existing third-party rights and - based on this - the examination of the reasons for the insolvency that are decisive for the legal form of the respective debtor . In addition to examining the reasons for insolvency, the insolvency report also regularly answers the question of whether the costs of the insolvency proceedings are covered. If these costs are covered, the court must open the proceedings.
Communication to the public prosecutor
On the basis of the order on notifications in civil matters (MiZi), the insolvency court notifies the locally competent public prosecutor of the decision on the opening of insolvency proceedings. It is now at the discretion of the public prosecutor to request the bankruptcy files and to check whether they give rise to an initial suspicion of criminal offenses, in particular with regard to bankruptcy offenses or breaches of accounting and accounting obligations, but also fraud or breach of trust. If the files contain any information about this, the public prosecutor must investigate.
The most common problem is the timely and complete payment of the social security contributions ( StGB) for the employee (s) (including the managing director). With the amendment to Section 266a of the Criminal Code on August 1, 2004 , in addition to employee shares, employer's shares are now also recorded under certain conditions. Until July 31, 2004 according to §266a StGB a. F. only the failure to transfer employee shares is punishable. While the 5th criminal senate of the BGH affirmed the criminal liability according to §266a StGB in connection with Abs. 2 GmbHG if social security contributions are not paid with priority, the 2nd civil senate of the BGH decided against it. According to him, the social security institutions do not have priority over other creditors. In the case of payments made anyway, these are contestable in accordance with InsO and the managing director is liable for damages due to the violation in accordance with §64 (2) GmbHG.
A large area of liability in the case of bankruptcies is the timely and legally compliant preparation of trade balances (cf. AO ). Neither the commercial nor the tax balance sheet is sufficient for the criminal and civil law examination of over-indebtedness . Rather, a separate over-indebted status is always necessary. If a company has bank loans, the trade balance sheets should also be checked for credit fraud . Pursuant to KWG, a loan application includes the commercial balance sheet, not the less meaningful tax balance sheet.
When checking for tax evasion , the sales tax is particularly explosive. Basically, it does not depend on the payment, but on the timely submission of the tax return . With the monthly VAT registration , the tax reduction is already realized if the registration is not submitted by the 10th of the following month at the latest. The generally assumed extension of the deadline by the 15th only has a discharging effect if payment is made with the declaration. This is where the fiction of voluntary disclosure comes into play .
Security measures, §§ 21-25 InsO
In the period up to the decision on the opening application, the insolvency court has the duty to take measures to safeguard the debtor's assets so that they do not decrease further during the pending period and business operations can continue to be maintained for the time being ( preliminary insolvency administrator can be considered as such a measure . Furthermore, a prohibition of disposal can be imposed on the debtor and foreclosures against the debtor can be prohibited or suspended. If a preliminary insolvency administrator is appointed and a general prohibition of disposal is imposed on the debtor at the same time, one speaks of a strong, otherwise of a weak preliminary insolvency administrator.InsO). The appointment of a
The strong provisional administrator takes over the powers of the debtor completely according toAbs. 1 InsO and therefore has extensive competencies and tasks, in particular the securing of the mass, the continuation of the company, the organization of wage payments as well as the examination whether the mass covers the procedural costs . The duties of the weak provisional insolvency administrator are determined by the court in accordance with Section 22 (2) InsO. The law only stipulates that his powers must not exceed those of the strong preliminary insolvency administrator. In addition to the defined powers, the court can make certain or all of the debtor's dispositions dependent on the consent of the weak administrator (Section 21 (2) sentence 1 no. 2 InsO). The appointment of an administrator of this type is the rule, since the strong provisional administrator establishes so-called mass liabilities, which can be disadvantageous for the bankruptcy estate and means a higher liability risk for the administrator.
If the court takes a security measure, it will make this known in accordance withInsO.
Course of the bankruptcy proceedings
If the prerequisites for opening are met, the court decides to open insolvency proceedings and immediately publishes the decision in accordance with insolvency administrators are named in the opening resolution . As a rule, the provisional liquidator takes the position of the final liquidator.(1) InsO. Debtors and
With the resolution, the creditors are requested to assert their claims and security interests within a specified period (InsO). The reporting date and the examination date are also set.
Following the adoption of the opening decision which takes judicial officer handling the court proceedings from the bankruptcy judge, as far as this is not an exception, the responsibility in whole or in part, reserves itself.
General effects of the opening of proceedings, Sections 80–102 InsO
Although the debtor remains the owner of the assets belonging to him, when insolvency proceedings are opened, the administration and disposal authority over the insolvency estate is transferred to the insolvency administrator in order to protect the bankruptcy estate pursuant to(1) InsO. According to (1) InsO, the latter is obliged to immediately take possession of the assets belonging to the estate. Likewise, the debtor cannot conduct any litigation with effect for the bankruptcy estate; this is also reserved for the administrator.
According to than in the BGB , which only covers legal changes. For the purpose of effective mass protection, the standard covers every legal act of the debtor at the expense of the mass, such as resignations , contestations , setting deadlines or legal acts . This allows the debtor to undertake himself , but his assets are only liable for this insofar as they are not part of the mass, which applies, for example, to his non-attachable assets. The decisive time of assessment is the execution of the disposition. For this reason, Section 81 InsO does not, for example, cover the advance assignment of a claim that arises after the opening of proceedings, as the act of disposal of the assignment was carried out before the opening. The regulation of §81 InsO leaves the purchase of land in good faith for reasons of traffic protection . In order to prevent such a situation, the insolvency administrator must have an insolvency note entered in the land register as soon as possible after the opening of the proceedings in accordance with InsO. In addition, Section 81 InsO refers to the comparable good faith provisions for the purchase of ships, shipbuilding structures and aircraft. On the other hand, a bona fide acquisition of movable assets is excluded , unless the insolvency administrator approves this. If someone who has relied on the effectiveness of his acquisition from the debtor surrenders the thing, he has a claim against the insolvency administrator to surrender his consideration in accordance with Section 81 (1) sentence 3 InsO, insofar as it enriches the mass.(1) Sentence 1 InsO, dispositions made by the debtor on mass objects after the initiation of proceedings are ineffective. The term “disposal” goes further in Section 81 InsO
The regulation of Section 81 InsO follows on from claim that was assigned as a precautionary measure and that arises after the opening of the proceedings. Section 91 InsO also protects the good faith of the purchaser to a limited extent. Unlike the reference in Section 81 InsO, Section 91 InsO also includes BGB in addition to its provisions . This standard declares subsequent restrictions on disposal, such as the debtor's loss of the power of disposal according to InsO, to be irrelevant if the change in law has not yet taken place through entry in the land register, but otherwise all conditions for acquisition are met. The idea behind §878 BGB is that any delays by the land registry should not affect the purchaser. The reference in §91 InsO enables a bona fide acquisition of a property right if the debtor loses his power of disposal by opening the procedure after submitting all necessary declarations.InsO, which prohibits the acquisition of rights to mass objects in any other way, i.e. not through a disposition by the debtor. This regulation represents a catch-all element which is intended to guarantee comprehensive protection of the bankruptcy estate against actions by the debtor. For example, it records the acquisition of a
In addition, individual foreclosures against the insolvency estate and other assets would be inadmissible from the initiation of proceedings pursuant to(1) InsO, as otherwise there would be the risk of a race of creditors that would damage the assets and would run counter to the principle of equal treatment of creditors. In addition, the so-called kickback lock of InsO takes effect, which means that security measures that were obtained through foreclosure in the last month before the application are made are retrospectively ineffective. This should also ensure that the bankruptcy estate is used for the collective satisfaction of the creditors.
Since the power passes to administer the bankruptcy estate to the insolvency administrator, persons against whom the debtor is entitled, in accordance withInsO afford only with an exemption to the debtor, if they had no knowledge of the proceedings are opened. Current processes of the debtor are interrupted according to ZPO and can be started by the administrator or the other side under certain conditions ( and InsO).
The opening of insolvency proceedings leads to the dissolution of the company (for the BGB societyParagraph 1 BGB, for the OHG Paragraph 1 No. 3 HGB, for the KG § 131 Paragraph 1 No. 3 HGB, Paragraph 2 HGB, for the GmbH Paragraph 4 No. 4 GmbHG and for the AG Paragraph 1 No. 3 AktG). However, that does not mean that society will end there. The termination only occurs in the exceptional case that no company assets are available. As a rule, the dissolution of the company changes the purpose of the company: a so-called advertising company (i.e. a company aimed at making a profit) becomes a company whose sole purpose is the exploitation of the company's assets.
The insolvency administrator creates lists of the assets and the creditors as well as an overview of the debtor's assets, which are displayed at the latest one week before the reporting date (InsO). In the reporting meeting, he reports to the creditors' meeting on the debtor's economic situation and explains the possibility of maintaining the company and an insolvency plan ( InsO).
On the basis of the report, the creditors' meeting decides on the progress of the insolvency proceedings (Paragraph 1 Clause 1 InsO), in particular on the closure or continuation of the debtor company ( InsO). It is made up of the creditors, the debtor, the administrator and the creditors' committee that may have been set up beforehand by the bankruptcy court ( InsO). The creditors' meeting is chaired by the Rechtspfleger.
The insolvency administrator accepts the claims registrations of the creditors (InsO). The insolvency administrator subjects every claim filing to a formal check. He checks whether the registration is correct, d. H. whether the reason, amount and the legal assertion that it is a bankruptcy claim are given in the registration. In the event of a formal deficiency (e.g. no amount is given), the insolvency administrator rejects the application, otherwise he enters the application in the claims table. Before the table is open to all parties involved ( InsO), the insolvency court will again check the admissibility of the individual registrations based on the aforementioned criteria.
In the examination date, the registered claims are checked for amount and rank at a creditors' meeting (Section 29 (1) sentence 2 andInsO). If neither the administrator nor a bankruptcy creditor object to a claim, it is deemed to have been established and is entered in the table with rank and amount ( InsO). In the event of a contradiction, a distinction must be made between a titled and a non-titled claim. In the case of a titled claim, i. H. there was already an enforceable debt instrument for this claim before bankruptcy was opened, it is up to the contestant to pursue the objection. In the case of a claim that is not titled, the creditor concerned can bring an action for determination ( InsO).
The actual examination of the claims does not only take place in the examination date, but was carried out by the administrator in the time before, i.e. from the receipt of the claim registration (this must be dated to a point in time after the opening) up to the actual examination date. The examination date is accordingly a court date at which disputed matters can still be discussed (provided that this is presented by creditors present), otherwise the already prepared examinations are only officially confirmed by a court on this date. In the case of extensive proceedings or a large number of creditors, there may be several so-called continued examination dates. In judicial practice, creditors hardly ever appear at the examination date, as all the details have already been clarified in advance. The exam date is therefore mostly a formal legal process that ends within a few minutes.
Processing of pending transactions, §§ 103–128 InsO
When proceedings are opened, the debtor typically has contractual relationships with other people. If the debtor's creditor has already performed his entire service within the framework of a mutual contract, such as a purchase, rental or work contract, his claim to the consideration is an insolvency claim. If the debtor has paid in full, the insolvency administrator can demand consideration from the obligee for this performance.
InsO applies to contracts in which neither party has yet fully fulfilled . This contains the regulation that the administrator decides on the future of these contracts: If he chooses the fulfillment of the contract, the obligee has to provide his performance and may demand the consideration from the debtor. According to (1) No. 2 InsO, this claim to the consideration has the quality of a mass claim. If he chooses to reject the contract, the obligee cannot demand performance from him, but can only file a claim for non-performance, for example directed to lost profit, as insolvency claim.
Over a long period of time, it was extremely controversial how the opening of insolvency would affect pending contracts: In the past, case law assumed that mutual claims for performance from contracts would expire and arise again through the administrator's choice of performance (expiry theory). As a result, for example, assignments of claims before the opening of proceedings, for example by way of a global security assignment by the debtor, were ineffective. This view was criticized by jurisprudence for the fact that it was difficult to reconcile with the law: For example, InsO provides that the claims after the termination of the proceedings can be enforced against the debtor again. This presupposes that the claims in the proceedings do not expire, but are only inhibited in their enforceability. For this reason, the case law refrained from the theory of extinction and now maintains that the claims from the debtor's contracts do not lapse, but that their enforceability is inhibited when proceedings are opened. If the administrator decides in favor of the fulfillment option, the claims become enforceable again. In doing so, they receive the quality of original mass claims and liabilities (quality leap theory). This result, known as a leap in quality, has the effect, similar to the earlier extinction theory, that counter-rights restrict the counter-rights of the individual creditor, which benefits the insolvency estate.
For certain types of contracts and situations, the norms following Section 103 InsO contain special provisions that limit the insolvency administrator's right to choose: According to reservation has been made. (1) of the InsO contains a similar provision for the acquisition of an item subject to retention of title . Other regulations relate to long-term obligations, such as rental and lease agreements and employment contracts. The latter in particular are protected in a special way, for example through insolvency and unemployment benefits and through the involvement of the works council in the event of operational changes.InsO, the administrator cannot refuse the obligation to fulfill a claim to grant or transfer a right to a property if in favor of the A
Avoidance of insolvency, §§ 129–147 InsO
After the opening of the insolvency proceedings, the access of the whole of the creditors to the insolvency estate is secured, since the power of disposal over the assets of the insolvency debtor is transferred to the insolvency administrator and the individual foreclosure is prohibited. The insolvency challenge has the period before the opening of proceedings in view: Since the economic crisis of the later insolvency debtor is already apparent before the opening of proceedings, both the creditor and the debtor side often try to remove individual items of the debtor's assets from the access of the later totality of creditors. In order to be able to reverse such shifts of assets and the associated improved position of individual creditors, the legislature has created the possibility of contesting such acts. A similar goal pursues the challenge law for the individual enforcement. The practical importance of the insolvency contestation is also extraordinarily great due to the case law of the Federal Court of Justice that favors it.
According toInsO, a legal act carried out by the debtor before the opening of proceedings can be contested if it led to the disadvantage of the bankruptcy creditors. Such a disadvantage exists if the act leads to a reduction in the assets available to satisfy the creditors (reduction in the assets) or if they are burdened with claims (increase in the liabilities). Furthermore, there must be a reason for contestation, such as the deliberate disadvantage of creditors ( InsO) or the free performance ( InsO).
If the prerequisites for a contestation are met, the insolvency administrator can demand the surrender of the benefit obtained from the contestant in accordance with(1) sentence 1 InsO. However, the challenge should not give preference to the insolvency estate, which is why the claim that was to be satisfied by the contestable act of fulfillment is revived as an insolvency claim in accordance with (1) InsO in the amount of what was returned.
The insolvency administrator often takes possession of items that are in the debtor's sphere but belong to a third party. This is the case, for example, with rented company property or with objects that have been delivered under retention of title . Since these objects do not belong to the bankruptcy estate, the administrator has to hand them over to the entitled persons by way of separation . However, this is not a specific insolvency law procedure; rather, the items to be segregated remain unaffected by the procedure and can be reclaimed according to general regulations, for example via the owner's claim in rem for surrender under BGB.
In order to increase the mass, the insolvency administrator collects claims from the debtor by virtue of his administrative authority. Since these are mostly disputed, especially in complaint cases, and their rights can hardly be checked without effort, an out-of-court, amicable settlement is sought - often with a blanket threat of legal action. This speeds up the process for everyone's benefit. Otherwise all that remains is a pragmatic copying of dubious claims, which can, however, be offset by compensation for the statute of limitations - in practice this is often an unsolved dilemma. Assets that are unusable or whose realization would even burden the bankruptcy estate (for example through expansion costs) can be separated from the estate by the insolvency administrator by releasing them and making them available to the debtor again.
Utilization, §§ 156-173 InsO
After the reporting date, unless the creditors' meeting decides to the contrary, the realization of the estate will begin ( Industrial auction ). If the administrator, however, plans to sell the company or a business, he must obtain the approval of the creditors 'committee in accordance with InsO or, if this has not been appointed, the creditors' meeting. The sale means that the company is no longer part of the bankruptcy estate, but the proceeds from the sale increase the amount.InsO). The administrator can sell assets individually without the consent of the creditors' meeting or - for example by collecting societies - have them auctioned (see:
Special features apply with regard to the recovery of items that are subject to segregation rights . In contrast to segregation rights, there are segregation rights to objects that belong to the bankruptcy estate. The right of segregation, however, gives its owner the right to preferentially satisfy himself before the other creditors. Examples of segregation rights are liens ( InsO) and security property ( No. 1 InsO). If the encumbered thing is an immovable, liquidated creditor or administrator according to InsO through foreclosure auction or administration . Land and its accessories are considered immovable. The administrator utilizes movable objects according to InsO, if he has possession of them, otherwise the person entitled to segregation may utilize them himself according to InsO. This distinction serves to facilitate the sale of the company as an economic unit that can regularly be sold more cheaply than an individual item. If there is a sale, the person entitled to segregation is initially satisfied from the sales proceeds, deducting the costs for determination and recovery, then the excess flows into the mass.
The realization of the estate can therefore be pursued in three different ways: In the event of liquidation , the entire debtor's assets are realized in the context of foreclosures or private sales. The creditors are satisfied from the proceeds achieved. The restructuring, on the other hand, serves to preserve the debtor's business: it aims to make the business efficient again in order to satisfy the creditors with the profits generated. Such a reorganization can take place by restructuring the insolvent company. However , remediation can also be transferred , which is more common in practice. Here, the components of the debtor company are transferred to another legal entity by way of an asset deal , while the previous insolvent legal entity is liquidated. The advantage for the acquirer is that he receives the debtor's assets, while the liabilities remain with the debtor to be liquidated. The proceeds from this sale will be used to satisfy the creditors.
Distribution of the insolvency estate, §§ 187–206 InsO
If the mass is converted into money, the mass liabilities are adjusted first . This includes the costs of the insolvency proceedings ( InsO), i.e. the remuneration of the provisional and final administrator as well as the court costs ( InsO). In the next step, the other mass creditors are satisfied. These are creditors who acquired a claim against the masses during the proceedings, such as suppliers who should continue to supply the insolvent company for the purpose of continuing their own production ( InsO).
From the remaining dividing assets, the insolvency creditors are finally satisfied as those whose entitlement already existed when the proceedings were opened ( insolvency table ( InsO). After the realization of the assets has ended, the final distribution takes place in accordance with InsO with the consent of the bankruptcy court. In accordance with InsO, a decision is made on objects that cannot be used in a final meeting of creditors.InsO). This process begins at the earliest after the examination date and can be done in discounts, provided that there is enough money for it ( InsO). The prerequisite for such advance payments is the approval of the creditors' committee, if one exists. According to InsO, the latter takes on the task of determining the quota. At the examination date, the administrator creates a list of the claims that are to be taken into account in the distribution, the
Completion of insolvency proceedings, §§ 207–216 InsO
After the final distribution has been completed, the court decides to cancel the insolvency proceedings (InsO). After the proceedings have been terminated, the creditors can in principle assert their remaining claims that were not satisfied in the insolvency proceedings against the debtor without restriction, for example by way of individual foreclosure. Enforcement then takes place with an enforceable extract from the insolvency table, which has the power to judge in enforcement ( InsO).
A foreclosure cannot take place from the table entry after the insolvency proceedings have been lifted if the debtor himself has disputed the registered claim. In order to obtain a title for enforcement in such a case after the bankruptcy proceedings have been lifted, the creditor must bring a declaratory action against the debtor (InsO). If a legal dispute was already pending against the debtor at the time the insolvency proceedings were opened, this must be resumed by the obligee and converted to a declaration. In the event of a successful judgment, the creditor can then enforce the debtor even after the bankruptcy proceedings have been terminated.
In practice, enforcement after the end of the proceedings is often not possible: natural persons can apply for the discharge of residual debt as part of the insolvency proceedings. If the court grants this, enforcement is no longer possible ( stock corporation , KGaA or GmbH , which no longer has any assets after the insolvency proceedings have been carried out, this will be deleted ex officio in accordance with (1) sentence 2 FamFG so that any claims will become irrelevant., InsO). If the debtor is a legal person, such as a
The insolvency administrator is liable for damages if he causes damage by breaching an obligation incumbent on him under the insolvency regulations ( (1) InsO). The measure of his fault is the diligence of a prudent and conscientious insolvency administrator. The statute of limitations for these claims is based on InsO, whereby the claims expire no later than three years from the cancellation or the legal force of the termination of the insolvency proceedings .
Examples of claims for damages against the insolvency administrator:
- Liability for disadvantages from incorrect bookkeeping (e.g. tax disadvantages), insofar as it falls within the term of office of the insolvency administrator
- Claim for damages due to the sale of the debtor company below price
- Claim for damages due to the execution of the insolvency proceedings in excessive haste
- Compensation for the recognition of unjustified claims by the insolvency administrator
- Compensation for failure to pull attainable assets to earth
- Compensation for the statute of limitations on claims
- Compensation for the damage caused by the fact that the insolvency administrator has paid late tax claims on the table
- due to failure to consider a registered and established claim when drawing up the debtor register
- for breach of the duty to investigate documents
- because of the late fulfillment of a satisfaction claim, which is secured by a reservation
- because of the failure to observe the rights of separation and separation
In order to avoid claims for damages, standards such as the principles of proper insolvency administration have been introduced in the insolvency administration . In addition, insolvency administrators use specialized programs that contain various protective mechanisms.
Insolvency plan procedure, §§ 217–269 InsO
Within the standard procedure, the insolvency regulation offers the newly created instrument of the insolvency plan ( InsO). In the insolvency plan, those involved in the proceedings can make agreements that deviate from the standard procedure, with a large degree of autonomy. In particular, a rule can be made in an insolvency plan to maintain the company.
An insolvency plan can be submitted to the insolvency court by the debtor or the insolvency administrator (InsO). The insolvency administrator can also be commissioned by the creditors' meeting to prepare the plan ( InsO). In the case of insolvency proceedings in self-administration ( InsO), the trustee is authorized to submit ( (1) InsO).
Components of the insolvency plan
The insolvency plan consists of a representative and a creative part (InsO). The descriptive part contains the description of the company's situation, the causes of the bankruptcy and the necessary restructuring measures. The creditors and the bankruptcy court should be informed about the goal of the plan and the way to achieve it. Planned goals can be, for example, internal restructuring, transferring restructuring, liquidation or a moratorium on the deferral of claims.
The creative part determines how the legal position of those involved is changed by the plan (InsO). The plan divides the creditors into groups. Groups specified by law are entitled to separate, non-subordinate and subordinate insolvency creditors ( (1) InsO). The author of the plan can group creditors with the same legal status and economic interests of the same type into further groups (Section 222 (2) InsO). In contrast to the normal procedure, the creditors are only treated equally within the respective group.
Preliminary judicial review
If the insolvency plan is presented to the court, the court must first conduct a preliminary examination (InsO). This is to ensure that obviously unsuitable, for example illegal or hopeless, plans are sorted out in advance. The court first examines deficiencies in the submission or in the content of the plan. In particular, the appropriateness of the group formation ( InsO) is examined more closely , since the group formation can be decisive for the voting result (cf. ff. InsO) and no further review takes place until the vote.
In the case of a plan submitted by the bankruptcy debtor, the court must also examine whether the submitted plan is obviously without any prospect of success or whether the envisaged satisfaction of the creditors is obviously futile ((1) No. 2 InsO).
If the insolvency plan is not rejected, the insolvency court forwards it for comments to the creditors' committee, the administrator and the debtor as well as to the works council and the spokesperson's committee for senior executives (InsO). The insolvency plan and statements are made available for inspection by those involved ( InsO).
Vote on the plan
The court sets a date in which, after the discussion and any changes by the plan author, the plan is voted on (InsO). Creditors whose claims are not affected by the plan do not have any voting rights ( InsO). The creditors vote in the groups provided for in the plan ( InsO). The plan is accepted if there is a majority in each group in terms of heads and claims amounts of the voting creditors ( InsO).
If no majority is achieved in a group, the consent of this group is nevertheless deemed to have been given in accordance with the prohibition of obstruction inInsO if, for example, the position of the group does not deteriorate due to the plan or if the majority of the groups agree. This is intended to break the resistance of creditors unwilling to reorganize and to facilitate the acceptance of the plan.
The debtor can contradict the plan. His contradiction is irrelevant if he does not experience any deterioration in his position due to the plan (InsO).
Confirmation of the plan by the court
After the creditors have accepted the insolvency plan, the insolvency court will decide on the confirmation of the insolvency plan (InsO). As part of this ex officio decision, the court also checks whether the lack of consent from groups of creditors ( InsO) needs to be replaced. The confirmation is to be refused ex officio if the provisions on the content and the procedural treatment of the insolvency plan as well as on the acceptance by the parties and the consent of the debtor have not been observed in an essential point and the deficiency cannot be remedied ( InsO). Another reason for failure is that the acceptance of the plan has been brought about unfairly, in particular by favoring one of the parties involved ( No. 2 InsO). Unfair and therefore null and void is, for example, bringing about the acceptance of an insolvency plan through a purchase of receivables that offers individual creditors particular advantages.
Effect of the confirmed insolvency plan
When the confirmation of the plan becomes final, the effects for and against all parties involved in the creative part take effect (InsO). Participants are the bankruptcy creditors, the creditors entitled to separate payment and the debtor, insofar as their liability has been regulated after the end of the proceedings ( InsO). If a partial waiver of insolvency claims was provided for in the creative part of the insolvency plan, this regulation applies to all claims, including those claims that have not been registered ( InsO). With the satisfaction of the insolvency creditors provided for in the creative part, the debtor is released from his remaining liabilities to these creditors ( (1) InsO). The insolvency plan can provide that its fulfillment is monitored by the insolvency administrator ( InsO)
The insolvency creditors can use the legally confirmed insolvency plan in connection with the entry in the table as from an enforceable judgment against the debtor (InsO). This regulation is intended to enable insolvency creditors to enforce plan-regulated claims more quickly and easily, but not to limit them to this. Therefore, the ordinary legal action remains, which is particularly relevant for non-registered insolvency claims.
Claims of the insolvency creditors against third parties, such as guarantors , are not affected by the insolvency plan and can therefore continue to be asserted (Section 254 (2) InsO). If the debtor falls significantly behind in fulfilling the insolvency plan, the deferral or remission provided there is no longer applicable ( InsO).
If the confirmation of the insolvency plan is legally binding, the cancellation of the insolvency proceedings is decided (InsO), unless the insolvency plan provides otherwise. The decision of the insolvency court on the annulment is not contestable ( Abs. 1 InsO). With the resolution, the offices of the insolvency administrator and the members of the creditors' committee also expire ( InsO).
Insolvency in self-administration, §§ 270–285 InsO
In the case of self-administration proceedings, there is no need to appoint an insolvency administrator. Instead, the debtor conducts the procedure for which he retains his power of disposal. However, he is in his business activities by Trustee monitored.in this case by a court-appointed Insolvency
The self-administration based on the procedure of Chapter 11 of the US Bankruptcy Code (debtor in possession) serves to make the experience of the debtor with the company useful for the procedure. Furthermore, the procedure is cheaper because, for example, the proportionate remuneration of an administrator is lower than that of an administrator. In addition, the legislature intended to give the debtor an incentive through the prospect of self-administration to file for bankruptcy earlier. However, critics see the danger that the debtor may abuse his greater freedom to get rid of assets. In addition, the bankruptcy is not infrequently related to errors on the part of the debtor, so that it is doubted that the debtor can carry out a successful restructuring.
In practice, self-administration has not yet prevailed as hoped by the legislature. Companies capable of restructuring are still trying to carry out restructuring and reorganization outside of the insolvency proceedings. The restructuring potential under insolvency law remains unused. Self-administration occurred in the insolvency proceedings over the assets of Kirch Media GmbH & Co. KGaA, Babcock-Borsig AG and Ihr Platz GmbH & Co. KG.
Self-administration is predestined if the insolvent company applies for insolvency proceedings early on, for example if there is only impending insolvency, and presents an insolvency plan with the aim of restructuring at an early stage. In this case regulated in protective shield procedure, is used to initiate the preparation of the restructuring of the company: The debtor has up to three months to work out an insolvency plan. In order to prevent misuse, the debtor must submit a certificate from a competent and independent person that there is no insolvency and that the recovery is not obviously futile.InsO, the court can only reject the trustee proposed by the debtor if it is obviously unsuitable. This process, known as the
Consumer insolvency proceedings, Sections 304–314 InsO
With the consumer insolvency procedure, a separately regulated, simplified insolvency procedure is available for an insolvent natural person. In addition to the consumer, it is also open to small businesses within the meaning of(1) sentence 2 InsO. These include former self-employed people whose financial circumstances are manageable. This is the case if you have fewer than 20 creditors at the time you submit your application and no claims against you from employment relationships exist.
The first step on the road to consumer bankruptcy is an out of court settlement attempt between the debtor and his creditors based on a debt settlement plan . If this attempt at an agreement fails, the debtor can turn to the bankruptcy court and apply for an attempt at an agreement. If this fails too, simplified insolvency proceedings are opened.
This can be followed by a residual debt discharge procedure. This is a payment obligation by court order. Upon a justified request from at least one creditor, the court can refuse this payment obligation according to InsO by court order.
Special types of insolvency proceedings, §§ 315–334 InsO
In addition to the assets of every natural and legal person, insolvency proceedings can also be opened against an estate, the common property of a continued community of property or the common property of a jointly administered community of property ((2) No. 2 InsO).
COVID-19 Insolvency Suspension Act of March 27, 2020
On March 27, 2020, the law on the temporary suspension of the obligation to file for insolvency and the limitation of directors' liability in the event of insolvency caused by the COVID-19 pandemic (abbreviated to COVInsAG ) was drawn up and promulgated in the Federal Law Gazette. It came into effect retrospectively on March 1, 2020. The law suspends, among other things, the obligations to file for insolvency in accordance withInsO and (2) BGB if the insolvency or over-indebtedness is due to the COVID-19 pandemic. As far as the application obligations are suspended, the liability of the managing directors or board members for late or non-submission of an application ceases. In addition, liability for violations of the statutory prohibitions on payment in Sentence 1 GmbHG and Paragraph 2 AktG is reduced. It also makes it easier to take out loans.
The obligations to file for insolvency (including all other regulations of the COVInsAG, as these are linked to the suspension) will initially be suspended until September 30, 2020. However, the Federal Ministry of Justice can extend the regulations by ordinance until March 31, 2021 at the latest.
International insolvency law, §§ 335–358 InsO
International insolvency law regulates jurisdiction and applicable law in insolvency cases with cross-border implications. Within the European Union , except Denmark this has the Regulation (EC) no. 1346/2000 (EIR) primacy . In other cases, with cross-border references to countries outside the EU or with Denmark, InsO apply . (1) of the InsO lays down the principle that the opening of foreign insolvency proceedings is recognized in Germany, provided that the German courts would not have been competent under German law and the recognition does not lead to a result that is in line with the essential principles of German Law, especially fundamental rights, is obviously incompatible. If a foreign procedure is recognized according to these principles, the further course of the insolvency procedure and its effects are based on the law of the state in which the procedure is opened, Section 335 InsO.
In addition to main insolvency proceedings abroad, secondaryproceedings can be opened in Germany according to InsO, the effects of which are limited to the debtor's domestic assets. The German procedural rules are largely applied again to secondary insolvency proceedings. The European insolvency procedure applies within the EU.
In order to achieve a coordination of main and secondary insolvency proceedings , Art. 31 EuInsVO (PDF) and InsO order an obligation to cooperate with the appointed insolvency administrator. (2) InsO deals with cooperation between the courts involved . In addition, there are two guidelines drawn up by international associations, which are non-binding in nature: the Guidelines Applicable to Court-to-Court Communications in Cross-Border Cases developed by the American Law Institute and the International Insolvency Institute and the European Communication and Cooperation Guidelines for Cross-border insolvency.
Textbooks on German insolvency law
- Reinhard Bork: Introduction to bankruptcy law . 9th edition. Mohr Siebeck, Tübingen 2019, ISBN 978-3-16-156977-7 .
- Ulrich Foerste: Bankruptcy Law . 6th edition. CH Beck, Munich 2014, ISBN 978-3-406-66842-5 .
- Klaus Reischl: Insolvency Law . 3. Edition. Müller, Heidelberg 2014, ISBN 978-3-8114-9353-7 .
- Manuals on insolvency law in Germany
- Wilhelm Bichlmeier, Andrej Wroblewski: The insolvency manual for practice. Bankruptcy law, labor law, social law . 3rd, revised edition. Bund-Verlag, Frankfurt am Main 2010, ISBN 978-3-7663-3949-2 .
- Schütte / Horstkotte / Rohn / Schubert: The public corporation as bankruptcy creditor . Verlag Kohlhammer, 2006, ISBN 978-3-17-018943-0 .
Comments on the bankruptcy code
- Hans-Peter Kirchhof, Hans-Jürgen Lwowski, Rolf Stürner: Munich Commentary on the Insolvency Code . 3 volumes. 2nd Edition. Beck, Munich 2008.
- Wolfram Henckel, Walter Gerhardt (Ed.): The insolvency order . Comment justifies v. Ernst Jaeger , 6 volumes since 2004. De Gruyter, Berlin.
- Bruno Kübler, Hanns Prütting, Reinhard Bork: InsO - Commentary on the Insolvency Code , loose-leaf collection, 5 volumes. As of 6/19 (80th edition), RWS Verlag Cologne, ISBN 978-3-8145-8700-4 .
- Marie-Luise Graf-Schlicker: In sO - Commentary on the Insolvency Code , 5th edition, RWS Verlag 2019, ISBN 978-3-8145-3008-6 .
- Andreas Crone and Henning Werner: Manual for modern renovation management . Vahlen Verlag, Munich 2007, ISBN 978-3-8006-3360-9 .
- Michael Harz, Heinz-Günter Hub and Eberhard Schlarb: Renovation Management. Leading companies out of the crisis . 3rd edition, Düsseldorf 2006, ISBN 3-87881-184-5 .
- Anne Koark : Insolvent and still successful . Insolvency publisher, ISBN 978-3-9810954-1-8 .
- Hermann Lauer: Conditions Management. Design and enforce payment terms optimally . ISBN 3-87881-124-1 .
- Th. Möhlmann and Jens Schmitt: restructuring in bankruptcy . NWB Verlag Herne.
- Frank Roselieb and Marion Dreher (eds.): Crisis Management in Practice: Learning from Successful Crisis Managers . Erich Schmidt Verlag, Berlin 2008, ISBN 978-3-503-10090-3 .
- Bernhard Schellberg: restructuring management. Berlin 2017 . 2nd Edition. Erich Schmidt, ISBN 978-3-503-17134-7 .
- Christiane Siegel: The 2nd chance - framework conditions for restarting after bankruptcy . Guideline; Society for innovative employment promotion mbH, Bottrop 2005.
- Klaus-Rüdiger Veit: special balances , Herne 2004, ISBN 978-3-482-52621-3 .
- Charlotte Schildt: The bankruptcy of the freelancer . Dissertation, University of Hamburg, Nomos, Baden-Baden 2006.
- IDW ES 6 - Requirements for the creation of redevelopment concepts (source: WPg Supplement 3/2008, p. 90 ff., FN-IDW 2008, p. 381 ff.) (As of August 1, 2008).
- Annette Icks, Peter Kranzusch: Reorganizations in insolvency proceedings - transferring reorganizations and insolvency plan-based self-reorganizations in NRW. In: Institut für Mittelstandsforschung Bonn (Ed.): IfM-Material , Nr. 195, Bonn 2010.
- Peter Kranzusch, Annette Icks: When are the creditors paid out? Duration of corporate insolvency proceedings in a regional comparison. In: Institut für Mittelstandsforschung Bonn (Ed.): IfM-Material , Nr. 193, Bonn 2010.
- Peter Kranzusch: The quotas of insolvency creditors in regular and insolvency plan proceedings - results of insolvency proceedings after the insolvency law reform , in: Institut für Mittelstandsforschung Bonn (Ed.): IfM-Material Nr. 186, Bonn 2009 (with Annette Icks).
- Guido Paffenholz, Peter Kranzusch: Insolvency plan procedure - restructuring option for medium-sized companies , in: Institute for Mittelstandsforschung Bonn (Ed.): Schriften zur Mittelstandsforschung No. 114 NF, Wiesbaden 2007.
- Peter Kranzusch: Self-administration as an instrument for business continuity in insolvency proceedings - application goals and obstacles , in: Institute for Mittelstandsforschung Bonn (Hrsg.): Yearbook for Mittelstandsforschung 2008, publications on Mittelstandsforschung No. 116 NF, Wiesbaden 2009, pp. 93-124.
- Rosemarie Kay, Peter Kranzusch: Restarts: Do new startups bring more opportunities than risks for previously failed self-employed? In: AD Bührmann, HJ Pongratz (Ed.): Precarious entrepreneurship - uncertainties about self-employment and starting a business . Wiesbaden 2010.
On the history of bankruptcy law
- Ralf Bornhorst: The Bavarian bankruptcy law in the 19th century and the influence of Bavaria on the emergence of the Reich bankruptcy order of 1877 . Würzburg 2002 ( online (PDF; 2.7 MB)).
- Karl Gratzer and Dieter Stiefel (Eds.): History of insolvency and bankruptcy from an international perspective . Södertörns Högskola, Huddinge 2008, ISBN 978-91-89315-94-5 .
- Wolfram Henckel: Introduction - II. On the history of insolvency law . In: Ernst Jaeger (Hrsg.): Insolvenzordnung . tape 1 . de Gruyter, Würzburg 2002, ISBN 978-3-89949-087-9 , Rn. 3-68.
- Michael Jung: Insolvencies in the beginning industrialization process. Investigations into the living conditions of early industrial companies in the Bergisches industrial area . Wuppertal 1990.
- Anke Meier: The history of German bankruptcy law, in particular the emergence of the Reich bankruptcy code of 1877 . Lang, Frankfurt am Main 2003, ISBN 3-631-50506-X .
- Wilhelm Uhlenbruck : On the history of bankruptcy . In: German Journal for Business and Insolvency Law (DZWIR) . 2007, p. 1-5 .
- Official bankruptcy notices from various German federal states
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- Insolvency Statistics , Federal Statistical Office Germany
- IfM Bonn: Insolvency Statistics
- Reinhard Bork: Introduction to Insolvency Law . 9th edition. Mohr Siebeck, Tübingen 2019, ISBN 978-3-16-156977-7 , Rn. 1.
- Rolf Leithaus: § 1 , Rn. 4. In: Dirk Andres, Rolf Leithaus, Michael Dahl (Eds.): Insolvency Code: (InsO); Comment . 4th edition. CH Beck, Munich 2018, ISBN 978-3-406-71684-3 .
- Klaus Reischl: Insolvency Law . 3. Edition. Müller, Heidelberg 2014, ISBN 978-3-8114-9353-7 , Rn. 3.
- Gerhard Pape: § 1 , Rn. 1. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (ed.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
- Klaus Reischl: Insolvency Law . 3. Edition. Müller, Heidelberg 2014, ISBN 978-3-8114-9353-7 , Rn. 6th
- Gerhard Pape: § 1 , Rn. 16. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (ed.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
- Klaus Reischl: Insolvency law . 3. Edition. Müller, Heidelberg 2014, ISBN 978-3-8114-9353-7 , Rn. 17th
- Rolf Leithaus: § 1 , Rn. 5. In: Dirk Andres, Rolf Leithaus, Michael Dahl (Eds.): Insolvency Code: (InsO); Comment . 4th edition. CH Beck, Munich 2018, ISBN 978-3-406-71684-3 .
- Reinhard Bork: Introduction to Insolvency Law . 9th edition. Mohr Siebeck, Tübingen 2019, ISBN 978-3-16-156977-7 , Rn. 8th.
- Gerhard Pape: § 1 , Rn. 14. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (ed.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
- Gerhard Pape: § 1 , Rn. 13. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (ed.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
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- BGHZ 173, 286 (289).
- Sebastian Mock: § 17, Rn. 117. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (ed.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
- BGH, judgment of May 14, 2009, Az. IX ZR 63/08, full text = New Journal for Insolvency and Reorganization Law 2009, 471 (472-473).
- Ludwig Häsemeyer: Insolvency law . 4th edition. Carl Heymanns, Cologne 2007, ISBN 978-3-452-26282-0 , 7.20-7.21.
- Rolf Leithaus: § 18 , Rn. 2. In: Dirk Andres, Rolf Leithaus, Michael Dahl (eds.): Insolvency Code: (InsO); Comment . 4th edition. CH Beck, Munich 2018, ISBN 978-3-406-71684-3 .
- Karsten Schmidt: § 18 , Rn. 5. In: Karsten Schmidt (Ed.): Insolvency Code: InsO with EuInsVO . 19th edition. CH Beck, Munich 2015, ISBN 978-3-406-68250-6 .
- Ulrich Foerste: Insolvency law . 6th edition. CH Beck, Munich 2014, ISBN 978-3-406-66842-5 , Rn. 113.
- Karsten Schmidt: § 18 , Rn. 6. In: Karsten Schmidt (ed.): Insolvency Code: InsO with EuInsVO . 19th edition. CH Beck, Munich 2015, ISBN 978-3-406-68250-6 .
- Ludwig Häsemeyer: Insolvency law . 4th edition. Carl Heymanns, Cologne 2007, ISBN 978-3-452-26282-0 , 7.22.
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- Rolf Leithaus: § 19 , Rn. 2. In: Dirk Andres, Rolf Leithaus, Michael Dahl (eds.): Insolvency Code: (InsO); Comment . 4th edition. CH Beck, Munich 2018, ISBN 978-3-406-71684-3 .
- Ludwig Häsemeyer: Insolvency law . 4th edition. Carl Heymanns, Cologne 2007, ISBN 978-3-452-26282-0 , 7.23-7.25.
- Ulrich Foerste: Insolvency law . 6th edition. CH Beck, Munich 2014, ISBN 978-3-406-66842-5 , Rn. 116-119.
- Ulrich Foerste: Insolvency law . 6th edition. CH Beck, Munich 2014, ISBN 978-3-406-66842-5 , Rn. 118.
- Klaus Reischl: Insolvency Law . 3. Edition. Müller, Heidelberg 2014, ISBN 978-3-8114-9353-7 , Rn. 36.
- BGH, judgment of April 18, 2005, Az. II ZR 61/03, full text = DB 2005, 1321 ff.
- Klaus Reischl: Insolvency Law . 3. Edition. Müller, Heidelberg 2014, ISBN 978-3-8114-9353-7 , Rn. 143.
- Klaus Reischl: Insolvency Law . 3. Edition. Müller, Heidelberg 2014, ISBN 978-3-8114-9353-7 , Rn. 150-152.
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- Werner Sternal: § 81 , Rn. 4-5. In: Karsten Schmidt (Ed.): Insolvency Regulation: InsO with EuInsVO . 19th edition. CH Beck, Munich 2015, ISBN 978-3-406-68250-6 .
- BGH, judgment of December 10, 2009, Az. IX ZR 1/09, full text = New Journal for Insolvency and Reorganization Law 2010, 138 (140).
- Sebastian Mock: § 81, Rn. 3, 11. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (ed.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
- Sebastian Mock: § 81, Rn. 20-21. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (Hrsg.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
- BGH, judgment of May 11, 2006, Az. IX ZR 247/03, full text = New Journal for Insolvency and Reorganization Law 2006, 457.
- Ulrich Foerste: Insolvency law . 6th edition. CH Beck, Munich 2014, ISBN 978-3-406-66842-5 , Rn. 185
- Sebastian Mock: § 81, Rn. 30, 36. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (Ed.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
- Sebastian Mock: § 91, Rn. 1. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (ed.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
- Klaus Reischl: Insolvency Law . 3. Edition. Müller, Heidelberg 2014, ISBN 978-3-8114-9353-7 , Rn. 321.
- Jürgen Kohler: § 878 , Rn. 1-2. In: Reinhard Gaier (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 7 : Property law: §§ 854–1296: WEG, ErbbauRG . CH Beck, Munich 2017, ISBN 978-3-406-66540-0 .
- Rolf Leithaus: § 91 , Rn. 8. In: Dirk Andres, Rolf Leithaus, Michael Dahl (eds.): Insolvency Code: (InsO); Comment . 4th edition. CH Beck, Munich 2018, ISBN 978-3-406-71684-3 .
- Rolf Leithaus: § 89 , Rn. 2. In: Dirk Andres, Rolf Leithaus, Michael Dahl (eds.): Insolvency Code: (InsO); Comment . 4th edition. CH Beck, Munich 2018, ISBN 978-3-406-71684-3 .
- Ulrich Foerste: Insolvency law . 6th edition. CH Beck, Munich 2014, ISBN 978-3-406-66842-5 , Rn. 162.
- Klaus Reischl: Insolvency Law . 3. Edition. Müller, Heidelberg 2014, ISBN 978-3-8114-9353-7 , Rn. 334.
- Reinhard Bork: Introduction to Insolvency Law . 9th edition. Mohr Siebeck, Tübingen 2019, ISBN 978-3-16-156977-7 , Rn. 128.
- BGHZ 116, 156 (158).
- BGHZ 135, 25 (26-27).
- Klaus Reischl: Insolvency Law . 3. Edition. Müller, Heidelberg 2014, ISBN 978-3-8114-9353-7 , Rn. 476.
- Supreme Court, IX ZR 313/99 Urteiol of 25 April 2002, Az., Full-text = New Journal of Bankruptcy Law 2002 375.
- BGH, judgment of May 27, 2003, Az. IX ZR 51/02, full text = Neue Zeitschrift für Insolvenzrecht 2003, 491.
- Dirk Wegener: § 103, Rn. 133. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (ed.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
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- Christine Eder, Heribert Hirte: § 129 , Rn. 1. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (ed.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
- Reinhard Bork: Introduction to Insolvency Law . 9th edition. Mohr Siebeck, Tübingen 2019, ISBN 978-3-16-156977-7 , Rn. 244.
- Christine Eder, Heribert Hirte: Before § 129 , Rn. 9-9a. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (Hrsg.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
- Christine Eder, Heribert Hirte: § 129 , Rn. 172. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (eds.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
- BGH, judgment of November 16, 2007, Az.IX ZR 194/04, full text = NJW 2008, 655.
- BGHZ 105, 168 (187).
- Moritz Brinkmann: § 47 , Rn. 1-2. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (Hrsg.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
- Klaus Reischl: Insolvency Law . 3. Edition. Müller, Heidelberg 2014, ISBN 978-3-8114-9353-7 , Rn. 281.
- Ulrich Foerste: Insolvency law . 6th edition. CH Beck, Munich 2014, ISBN 978-3-406-66842-5 , Rn. 368.
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- Ulrich Foerste: Insolvency law . 6th edition. CH Beck, Munich 2014, ISBN 978-3-406-66842-5 , Rn. 368, 389-390.
- Heinrich Friedhoff: Reorganization of a company through self-administration and insolvency plan . In: Zeitschrift für Wirtschaftsrecht 2002, p. 497.
- Reinhard Bork: Introduction to Insolvency Law . 9th edition. Mohr Siebeck, Tübingen 2019, ISBN 978-3-16-156977-7 , Rn. 4th
- Reinhard Bork: Introduction to Insolvency Law . 9th edition. Mohr Siebeck, Tübingen 2019, ISBN 978-3-16-156977-7 , Rn. 434 ff.
- Dirk Andres: Before § 113 , Rn. 1. In: Dirk Andres, Rolf Leithaus, Michael Dahl (Eds.): Insolvency Code: (InsO); Comment . 4th edition. CH Beck, Munich 2018, ISBN 978-3-406-71684-3 .
- Klaus Reischl: Insolvency Law . 3. Edition. Müller, Heidelberg 2014, ISBN 978-3-8114-9353-7 , Rn. 392.
- Hans-Jochem Lüer, Georg Streit: § 245 , Rn. 1. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (ed.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
- Dirk Andres: § 250 , Rn. 8. In: Dirk Andres, Rolf Leithaus, Michael Dahl (eds.): Insolvency Code: (InsO); Comment . 4th edition. CH Beck, Munich 2018, ISBN 978-3-406-71684-3 .
- Hans-Jochem Lüer, Georg Streit: § 257 , Rn. 1. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (ed.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
- Helmut Zipperer: § 270, Rn. 12. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (Ed.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
- Helmut Zipperer: § 270, Rn. 1. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (ed.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
- Ulrich Foerste: Insolvency law . 6th edition. CH Beck, Munich 2014, ISBN 978-3-406-66842-5 , Rn. 605.
- Dirk Andres: Before §§ 270-285 , Rn. 2. In: Dirk Andres, Rolf Leithaus, Michael Dahl (eds.): Insolvency Code: (InsO); Comment . 4th edition. CH Beck, Munich 2018, ISBN 978-3-406-71684-3 .
- Klaus Reischl: Insolvency Law . 3. Edition. Müller, Heidelberg 2014, ISBN 978-3-8114-9353-7 , Rn. 875a-875b.
- Dirk Andres: Before §§ 304-314 , Rn. 1. In: Dirk Andres, Rolf Leithaus, Michael Dahl (Eds.): Insolvency Code: (InsO); Comment . 4th edition. CH Beck, Munich 2018, ISBN 978-3-406-71684-3 .
- Ulrich Foerste: Insolvency law . 6th edition. CH Beck, Munich 2014, ISBN 978-3-406-66842-5 , Rn. 634.
- Art. 27f. EuInsVO (PDF) ; otherwise cf. Graf-Schlicker / Kebekus / Sabel, InsO, Cologne 2007, § 357 Rn. 2.
- Archive link ( Memento of the original from June 22, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , accessed February 6, 2010.
- B. Wessels and M. Virgós. European communication and cooperation guidelines for cross-border insolvency. Nottingham, Insol Europe, 2007.