liquidator

The insolvency administrator (before the introduction of the insolvency regulations in Germany and Austria as well as under Swiss law bankruptcy administrator or collective enforcement administrator , obsolete adversary ) is appointed by the bankruptcy court when insolvency proceedings are opened and supervised by this court. In the insolvency application procedure, the phase between the insolvency application and the opening of insolvency proceedings, German insolvency law provides the option of appointing a preliminary insolvency administrator. If the insolvency court orders self-administration , it appoints an administrator instead of an insolvency administrator.

Germany

Jurisdiction

Material jurisdiction

Factually responsible is exclusively the district court in the district where a district court has its seat, § 2 Insolvency Act (InsO). As a result of the exclusivity of the place of jurisdiction , the otherwise generally admissible prorogation , i.e. a place of jurisdiction agreed by the parties, according to § 2, § 4 InsO in conjunction with § 40 Paragraph 2 No. 2 Code of Civil Procedure (ZPO) is excluded.

Local jurisdiction

The local jurisdiction is based on § 3 InsO, according to which the district court is locally responsible, in whose district the "center of an independent economic activity" of the insolvency debtor is, § 3 para. 1 sentence 2 InsO. If the bankruptcy debtor is a consumer ( § 13 BGB ), the local jurisdiction of the bankruptcy court is based on the general place of jurisdiction ( §§ 12 ff. ZPO) of the bankruptcy debtor. The local jurisdiction is exclusive, so that the same applies to a jurisdiction agreement as to the material jurisdiction.

According to Section 56 InsO, the insolvency administrator must be a “natural person who is knowledgeable about business and who is independent of the creditors and the debtor”. As a rule, these are lawyers who have specialized in an activity as insolvency administrator (occasionally also as a specialist lawyer for insolvency law ) and who often only practice this profession.

End and remuneration

At the end of the office, the insolvency administrator has to submit a final invoice for the respective procedure, unless a different regulation has been made in an insolvency plan accepted by the creditors ( § 66 InsO). With the cancellation or suspension of the insolvency proceedings , the activity of the insolvency administrator ends, who can then claim his remuneration ( Section 63 (1) InsO) as procedural costs. Therefore, he will have a significant self-interest in ending the proceedings. The remuneration ordinance under insolvency law (InsVV, cf. § 65 InsO) is decisive for the amount of the remuneration of the insolvency administrator . The remuneration is granted according to so-called standard rates . It should be noted that the standard rate of remuneration is calculated according to the value of the bankruptcy estate at the time the bankruptcy proceedings are terminated .

According to the Insolvency Remuneration Ordinance (InsVV), the insolvency administrator receives 40% of the insolvency estate at a value of the assets at the end of the proceedings of 25,000 euros or less, but at least 500 euros (from 2004: at least 1,000 euros, with more than 10 creditors the increases Amount still). For a further 25,000 euros, the remuneration is 25%, for a further 200,000 euros 7%, for the further 250,000 euros 3%, for the further 24,500,000 euros 2%, for the 25,000,000 euros beyond 1% as well as for all excess amounts 0.5%. The remuneration is distributed proportionally to the respective scales. The usual business costs are covered by this remuneration, but travel costs etc. can be claimed separately. With the approval of the court, the insolvency administrator can take an advance payment for his activities from the mass.

Through the form of the remuneration, the administrator acts in particular against open claims of the insolvency estate on the one hand out of his position, since these claims belong to the insolvency estate, on the other hand in his own interest, since he - at least with small insolvency pools - to a considerable extent over his remuneration to the successful collection of the receivables benefits. This can lead to conflicts in the choice of means, such as (legal) threats. In addition, it must be taken into account that the insolvency administrator who is licensed as a lawyer can take fees and expenses separately from the bankruptcy estate for activities that an administrator who is not licensed as a lawyer would have reasonably transferred to a lawyer in accordance with the Lawyers' Remuneration Act (cf. § 5 InsVV).

Since the administrator's remuneration is usually set at the end of the proceedings, it is in his interest to proceed quickly without there being a specific deadline for the duration of insolvency proceedings. Insolvency proceedings can sometimes last for years if the real estate situation is difficult. This fact can lead to stress for those affected.

Educational requirements

There is no professional training to become an insolvency administrator. However, lawyers specializing in insolvency law, business economists , tax consultants and auditors are regularly entrusted with the tasks of insolvency administrators. Access to the office of the insolvency administrator is not clearly regulated. The competent insolvency judge is responsible for selecting the insolvency administrator . Only suitable persons should be appointed as the insolvency administrator. The law does not contain any regulation about how the judge gets an overview of the group of people in question, i.e. who can be considered as an insolvency administrator when the decision that has to be made regularly in a short time is pending.

Since so-called closed lists were kept in some insolvency courts , i.e. the same people were regularly appointed as insolvency administrators, applicants who were not considered have appealed against this practice with a constitutional complaint . The Federal Constitutional Court thereupon established rules for the appointment of the insolvency administrator.

In a further decision of May 23, 2006 the Federal Constitutional Court decided that the activity of the insolvency administrator is an independent profession.

New election

The creditors' meeting can replace the insolvency administrator with a new one. For this, not only the sum is even a majority of the claims, but also the head moderate majority of creditors required. The newly elected insolvency administrator must then be appointed by the court if he is not completely unsuitable.

Mass ratio

The office theory as the dominant opinion sees the insolvency administrator as an agent by virtue of office. He acts in his own name and with effects for and against the crowd and debtors.

According to Section 80 (1) InsO, the debtor may no longer dispose of and manage the estate (the attachable assets). But it is still part of his assets. The power of disposal itself is transferred to the insolvency administrator.

The insolvency administrator has to create an inventory of the assets in terms of administration and to secure the assets against debtors and creditors.

As an exception, the debtor can retain control and administrative power if the court allows self-administration ; in this case, instead of an insolvency administrator, a trustee is appointed to monitor the debtor.

Liability of the insolvency administrator and court

If the insolvency administrator violates the obligations of insolvency law, i.e. if he violates office-specific obligations, he is obliged to pay compensation to all parties involved ( Section 60 (1) InsO). Damages may therefore entitled: bankruptcy creditors , the debtor, from - and secretion beneficiaries and mass creditors . The insolvency administrator is responsible for the diligence of an orderly and conscientious insolvency administrator (standard of fault; Section 60 (1) sentence 2 InsO). He is liable with all of his private assets. The liability of the insolvency administrator is determined according to § 60 , § 61 InsO. In particular, the administrator is personally liable if he, as an insolvency administrator, establishes liabilities (collective liabilities ) and these cannot be fully met from the insolvency estate. In addition to private assets, the bankruptcy estate is also liable. The claims for damages against the insolvency administrator are statute-barred. after the regular limitation period of three years from knowledge ( Section 62 sentence 1 InsO); however, no later than three years from the cancellation or suspension of the insolvency proceedings ( Section 62 sentence 2 InsO). Errors in the selection of the insolvency administrator by the insolvency court can result in official liability according to § 839 BGB in connection with Art. 34 GG , because the judge's privilege ( § 839 Abs. 2 BGB) does not apply to the selection decision.

The ratio of the liquidator to the crowd

While the official status of the insolvency administrator is relatively unproblematic, it has long been disputed who the insolvency administrator is dealing with externally. Action for and against the masses, the debtor, the creditors and, in the case of litigation, the court can be considered.

Creditor representation theory

According to the no longer represented creditor representation theory , the insolvency administrator acted as a representative or organ of the community of creditors. This theoretical approach was justified by the fact that the insolvency proceedings were carried out exclusively in the interests of the creditors and that they also have a considerable influence on the proceedings. The problem with this opinion, however, is that the actions of the administrator primarily affect the debtor and his assets, not the creditors. Furthermore, from a legal point of view, the creditors are not linked to one another, so that the idea of representing the creditors remains undecided overall.

Debtor representation theory

The debtor representation theory regards the administrator as a representative of the debtor, whereby the power of representation is established by law. This theory can conclusively explain why the administrator can effectively commit on behalf of the debtor. On the other hand, it cannot explain the contradiction that representation typically takes place in the interests of the person represented, while the insolvency administrator has to do justice to a wide range of interests.

Organ theory

The representatives of the organ theory, on the other hand, see the insolvency administrator as a representative of the bankruptcy estate. Accordingly, they attribute the quality of the legal entity to the insolvency estate. It can be used to justify all the effects of administrators, which are usually limited to the masses. What speaks against organ theory, however, is that according to German law, only a legal subject can be represented, but never an object. The organ theory corresponds to the prevailing legal opinion, namely that the insolvency administrator acts in favor of and against the bankruptcy estate. This already results from the fact that he can continue to run a business from the insolvency estate and satisfy the employees (salaried employees) from the insolvency estate as so-called mass creditors. Likewise other new believers in connection with a business continuation or business liquidation. This legal construction would be neither imaginable nor practicable without organ theory. The insolvency estate is the legal subject here as a so-called special fund similar to a foundation.

Office theory

According to the official theory represented by the prevailing opinion, the insolvency administrator acts by virtue of his office in his own name and with the consequences that the law provides for and against the mass or for and against the debtor. A legal basis for this theory can be found in § 116 sentence 1 no. 1 ZPO. The pending theoretical clarification opens up an interpretative gray area, especially since the administrators' own interest in terms of remuneration can contradict the official role of representative in the legal system.

Provisional insolvency administrator

The court can appoint a so-called provisional insolvency administrator in accordance with Section 21 (2) InsO before the insolvency proceedings are opened . The legal status depends on the content of the decision of the court. Most resolutions provide that the debtor's disposition is subject to the approval of the preliminary insolvency administrator. In this variant of the so-called "weak" provisional administrator, the insolvency administrator has no power of disposal and only performs security functions. The bankruptcy court determines the scope. In exceptional cases, the court determines that the power of disposal is transferred to the preliminary insolvency administrator. The preliminary insolvency administrator may not realize the assets. However, he may continue the company and only shut it down with the approval of the court. He is also responsible for determining whether sufficient assets are available to cover the costs of the proceedings.

Austria

Since the 2010 Insolvency Law Amendment Act, the term insolvency administrator has been used in Austria . The procedure in Austria is called insolvency procedure, which in turn is divided into the restructuring procedure and the bankruptcy procedure. In the reorganization procedure, the insolvency administrator is called reorganization administrator and in bankruptcy proceedings, the administrator is known as the administrator. It is ordered by the bankruptcy court from a database maintained by the Linz Higher Regional Court (insolvency administrator list). He is responsible for the practical implementation of bankruptcy proceedings. He administers and represents the assets of the debtor, examines the registered claims and reports on them to the bankruptcy court. The trustee recognizes or denies this at the examination conference statute, where the filed bankruptcy claims are examined.

Switzerland

Web links

Wiktionary: Insolvency administrator - explanations of meanings, word origins, synonyms, translations

Individual evidence

↑ BVerfG, decision of August 3, 2004 , Az. 1 BvR 135/00, full text.
↑ BVerfG, decision of May 23, 2006 , Az. 1 BvR 2530/04, full text.

[1] BVerfG, decision of August 3, 2004 , Az. 1 BvR 135/00, full text.

[2] BVerfG, decision of May 23, 2006 , Az. 1 BvR 2530/04, full text.