Insolvency Avoidance (Germany)

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The insolvency avoidance regulated in §§ 129 ff. InsO refers to a legal institution of German insolvency law . It enables the insolvency administrator or, in the case of self- administration orders, the administrator to reverse legal acts that the debtor has undertaken in the run-up to the proceedings. The relevant legal acts can be shifts of assets, but also cover transactions. The insolvency contesting the be insolvent next to the existing at the opening of insolvency proceedings assets of the insolvent debtor returned to the previously contestable confiscated the assets back, so they can be distributed to all the creditors in the process.

An insolvency administrator can reclaim an asset by way of avoidance if the insolvency debtor has undertaken a legal act before the initiation of proceedings that disadvantages all of the bankruptcy creditors . Furthermore, there must be a reason for avoidance that justifies reclaiming the service provided by the debtor from the counterparty and thereby impairing the legal security of business transactions. Such is the case, for example, if the debtor gives away assets to third parties . The donee is less worthy of protection than the entirety of the creditors, who as a result of the donation cannot initially fall back on the asset, since they did not have to provide any services of their own for their acquisition.

In many other legal systems, the insolvency challenge is based on considerations similar to those in Germany. Therefore they provide for comparable conditions. Related to the avoidance of insolvency is the challenge of legal acts that are disadvantageous to creditors outside of the insolvency proceedings. Corresponding regulations are provided, for example, in Germany with the Avoidance Act and Austria with the Avoidance Ordinance . The ancient ancestor of the contestation of legal acts is the Roman-legal Paulian contestation action , the actio Pauliana .

Origin and purpose of the insolvency avoidance

Function of the challenge according to the InsO

When bankruptcy proceedings are opened, the bankruptcy estate is formed from the debtor's attachable assets . To determine the bankruptcy estate, special software is often used, which determines the amount available from existing accounting data. This amount is intended to meet the demands of the debtor's creditors participating in the insolvency proceedings as completely as possible.

The debtor's assets are included in the bankruptcy estate that he had at the time the proceedings were opened. Objects that the debtor has transferred to third parties before the initiation of proceedings are therefore not part of the mass. With such transfers of rights, there is a risk that individual creditors of the debtor will satisfy themselves in advance by putting the debtor under pressure, for example by threatening to file for insolvency if he does not meet their claims. As a result, a smaller amount is available for the satisfaction of creditors in insolvency proceedings than would be required under the legal system. Favoring individual creditors to the detriment of the others collides with the principle of equal treatment of insolvency creditors standardized in Section 1 Clause 1 of the Insolvency Code (InsO) . This is reflected, among other things, in the debtor's prohibition of disposal after the opening of proceedings ( Section 81 InsO) and the prohibition of individual foreclosure for the creditors ( Section 89 InsO). Another risk in the run-up to insolvency is that the debtor hides assets from access by the insolvency creditors, for example by transferring them to related parties.

In order to protect all bankruptcy creditors from this danger, the law allows legal acts to be declared ineffective under certain circumstances. As a result, an insolvency administrator who administers the bankruptcy estate for the creditors can demand advantages from beneficiary third parties and transfer them to the bankruptcy estate.

Forerunner: challenge after the knockout

The immediate predecessor of the insolvency avoidance is the bankruptcy avoidance, which was standardized in the bankruptcy code (KO) valid until December 31, 1998 . The earlier regulations were often criticized in jurisprudence for their lack of effectiveness. Therefore, in the course of the new regulation of German insolvency law, the legislature tried to make it easier for the administrators to assert claims for repayment after the insolvency contestation has taken place. To this end, for example, he lowered the requirements for the contestability of legal acts that put all insolvency creditors at a disadvantage. He also extended the deadlines within which claims can be asserted.

Practical Importance of Avoidance

The insolvency contestation is of great practical importance as an essential tool used by insolvency administrators to increase the bankruptcy estate. In order to determine contestable facts, administrators often use software with the help of which important data of the debtor can be examined, such as IDEA for accounting analysis or INVEP for accounting, mail and document analysis . This endeavor on the part of the insolvency administrator promotes case law significantly by interpreting the regulations on avoiding insolvency proceedings extremely broadly in order to protect creditors. This inevitably jeopardizes legal certainty, since creditors may run the risk of being asked to repay a benefit by an insolvency administrator for up to ten years. Due to the jurisprudence , the reason for avoidance of Section 133 InsO, which was conceived by the legislature as an exception and which, due to its particularly open formulation, leaves a lot of leeway in its application, is also associated with particularly great legal uncertainty for business transactions. For this reason, the current legal situation regarding the avoidance of insolvency is discussed controversially, especially in law and economics.

There was great criticism, above all, of the challenge to suppliers, service providers and landlords who regularly continue to provide services to the debtor in his financial crisis. Although they actually provided a proper delivery or service to the later insolvency debtor, the insolvency administrators often demand payments received back from the creditor, referring to Section 133 InsO. Quite a few creditors were threatened with bankruptcy themselves if they were sentenced to pay. The insolvency challenge is also often directed against tax advisors, auditors and lawyers who act for the debtor. According to current case law, tax advisors in particular run the risk of having to reimburse their fees in the event of their client becoming insolvent.

In order to protect the trust of legal transactions in the effectiveness of legal acts, the legislature reformed some norms of the right of avoidance with effect from April 5, 2017, whereby it restricted the contestability of certain legal acts. Critics believe that the reform will not protect creditors much better from challenge. Rather, the key lies in an appropriate interpretation of the relevant regulations by the courts.

Conditions for avoiding bankruptcy

Legal act of the debtor

A contestable legal act within the meaning of the Insolvency Code is any behavior that is linked to legal effects. This includes legal transactions , actions similar to legal transactions as well as real files . Thus, for example, the transfer of property, the assignment of claims or other rights, the pledging of property or rights or the encumbrance of property are contestable . Measures by creditors or third parties, in particular enforcement measures against the insolvency debtor, are also contestable .

Deliberate omissions on the part of the debtor can also be attacked . These include, for example, the rejection of an acquisition and the non-interruption of a limitation period . An omission under procedural law can also be contested, such as an omission to object to a payment order pursuant to Section 694 (1) of the Code of Civil Procedure (ZPO) or a default judgment ( Section 338 ZPO). According to § 141 InsO, even the legal force of such a decision does not preclude contestation under insolvency law.

In principle, legal acts of a preliminary insolvency administrator are also subject to contestation , unless the latter is authorized to dispose of the debtor's assets.

Actions that took place before proceedings were opened can be challenged. According to Section 140 (1) InsO, a legal act is deemed to have been carried out as soon as it has legal effect. As a rule, this is the case when all legal requirements are met in order to change a legal position at the expense of the masses. In the case of two- and multi-act transactions, it is therefore a matter of taking the last required action, such as accepting an application that leads to the conclusion of a contract. In the case of transactions that require approval in order to be effective , the legal effect does not come into effect until it is granted. An assignment of future claims develops as credit security with legal effect at the expense of the mass if the claim to be assigned arises.

Certain rights require entry in a public register. In the case of rights to real estate, this is about the land register . According to Section 140 (2) InsO, such a transaction is deemed to have taken place if its other requirements are met, the debtor's declaration of intent has become binding and the obligee has submitted the application for a change in the law. Like the similar regulation of Section 878 BGB, Section 140 (2) InsO is intended to prevent delays in the work process of the registry office from having a detrimental effect on the acquirer of rights.

Creditors' disadvantage

The action to be contested must lead to a disadvantage for creditors. This is the case if the bankruptcy estate that is available to satisfy the creditors as a whole is reduced as a result of the act. This occurs when the assets available to satisfy the creditors (assets) are reduced or the debtor's liabilities (assets) are increased. The former applies when valuables are removed from the debtor's assets. In contrast, the latter is the case, for example, if the debtor enters into an obligation so that further insolvency creditors join. It can also be a disadvantage if the act makes it more difficult to access the debtor's assets, for example by transferring funds from the debtor's account to an escrow account that cannot be seized to the same extent.

There is a reason for avoidance

If there is a legal act disadvantageous to the creditors before the opening of the proceedings, the general avoidance requirements of Section 129 InsO are met. Furthermore, one of the grounds for avoidance standardized in the InsO must be present. These demand that the action to be contested is either very close in time to the opening of insolvency proceedings or that it has taken place under circumstances that make a return to the insolvency estate appear to be justified while the traffic protection is inferior. As a rule, the requirements for the individual grounds for avoidance decrease the closer in time the action to be challenged is to the opening of proceedings.

Congruent coverage, Section 130 InsO

(1) A legal act is contestable which has granted or enabled a bankruptcy creditor security or satisfaction,

1. if it was carried out in the last three months before the application for the opening of insolvency proceedings, if the debtor was insolvent at the time of the act and if the obligee was aware of the insolvency at that time or
2. if it was carried out after the application to open and if the obligee was aware of the insolvency or the application to open at the time of the act.

This does not apply if the legal act is based on a security agreement that contains the obligation to order a financial security, another or an additional financial security within the meaning of Section 1 (17) of the German Banking Act in order to maintain the relationship between the value of the security agreement specified in the security agreement to restore secured liabilities and the value of the securities provided (margin security).

(2) Knowledge of the insolvency or the application for opening is equivalent to knowledge of circumstances that necessarily indicate the insolvency or the application for opening.

(3) In relation to a person who was close to the debtor at the time of the act (Section 138), it is presumed that he or she knew of the insolvency or the application for opening.

Section 130 InsO allows the contestation of actions that grant a creditor the satisfaction of his claim, such as the payment of a purchase price or remuneration. Such acts are referred to as cover acts. This term also includes actions that give the creditor the opportunity to enforce his claim more easily, for example by providing a loan security .

A cover is contestable according to § 130 paragraph 1 sentence 1 number 1 InsO if it was made within three months before the opening of the insolvency proceedings and the debtor was already insolvent within the meaning of § 17 InsO. In addition, the beneficiary creditor must have been aware of this insolvency when the legal act was carried out. If an application has already been made to open insolvency proceedings , the insolvency administrator can also contest the cover act pursuant to Section 130 (1) sentence 1 number 2 InsO if it was carried out by the insolvent debtor after the application was made and the creditor was aware of this application.

According to Section 130 (2) InsO, the knowledge of the obligee of the insolvency is equivalent if the obligee was aware of circumstances that would necessarily have indicated the insolvency. According to Section 17 (2) sentence 2 InsO, it is considered a strong indicator if the debtor stops making payments. This is the case if the debtor falls behind with his payments, so that the creditor should have had the impression that the debtor is suffering from payment difficulties.

Incongruent coverage, Section 131 InsO

(1) A legal act is contestable which has granted or enabled a bankruptcy creditor security or satisfaction that he did not have to claim, or in the manner or not at the time,

1. if the act was carried out in the last month before the application to open insolvency proceedings or after this application,
2. if the act was carried out within the second or third month prior to the opening application and the debtor was insolvent at the time of the act or
3. if the act was carried out within the second or third month prior to the opening application and the obligee knew at the time of the act that it was disadvantageous to the bankruptcy creditors.

(2) For the application of paragraph 1 no. 3, knowledge of the disadvantage of the insolvency creditors is equivalent to knowledge of circumstances that necessarily indicate the disadvantage. In relation to a person who was close to the debtor at the time of the act (Section 138), it is presumed that he was aware of the disadvantage of the bankruptcy creditors.

Offense

Section 131 InsO simplifies the contestation of cover acts that are incongruent compared to Section 130 InsO. This applies to security or satisfaction of the obligee to which the obligee was not entitled in the granted form: be it that they were not owed at the granted time, not in the granted manner or not at all. Because the obligee could not demand the cover in the given way from the debtor, the law considers him less worthy of protection. Therefore, § 131 InsO makes lower demands on the contestation of such cover acts.

Without additional subjective requirements, a legal act leading to incongruent coverage can be contested if it was carried out within one month before the opening of insolvency proceedings. If it was carried out up to two months earlier, i.e. in the second or third month before the application to initiate proceedings, it can be contested if the debtor was already insolvent at the time of the legal act or the beneficiary knew that the cover act was the other The debtor's creditors are disadvantaged.

According to Section 131 (2) sentence 1 InsO, knowledge of the disadvantage is equivalent if the creditor was aware of circumstances that would have necessarily indicated the disadvantage. According to § 131 Paragraph 2 Clause 2 InsO, knowledge of the beneficiary creditor is assumed if he was personally close to the debtor. According to § 138 InsO, spouses, life partners and relatives of the debtor are considered related parties. If the debtor is a company in which no partner is personally liable, members of the management bodies and their relatives are considered to be related.

Examples

An example of incongruent coverage is the subsequent ordering of loan security . Constellations in which assets are relocated in the run-up to insolvency - for example by paying bills for which no adequate consideration is recognizable - also represent a classic application for this form of contestation.

The performance on account of performance is deemed to be cover, which may not be claimed in its nature . Such is the case, for example, if the debtor assigns a claim against a third party instead of an originally owed cash payment. Satisfaction of a creditor through enforcement measures is also contestable according to § 131 InsO, since in the debtor's time of crisis the individual interests of beneficiaries subordinate to the principle of equal treatment of creditors in insolvency proceedings. The same rating applies if the debtor pays to a creditor because he has threatened foreclosure. Furthermore, § 131 InsO can cover the creation of the possibility of reciprocal offsetting of claims , since a creditor can thereby satisfy himself particularly easily.

For reasons of time, for example, coverage may no longer be claimed for a claim that is not due or that is statute-barred . Therefore, the performance in response to such a claim is subject to simplified contestation in accordance with Section 131 InsO.

Immediately disadvantageous legal act, Section 132 InsO

(1) A legal transaction by the debtor that directly disadvantages the bankruptcy creditors is contestable,

1. if it was carried out in the last three months before the application for the opening of insolvency proceedings, if at the time of the legal transaction the debtor was insolvent and if the other party knew about the insolvency at that time or
2. if it was made after the application to open the contract and if the other party was aware of the insolvency or the application to open at the time of the legal transaction.

(2) A legal transaction that directly disadvantages the insolvency creditors is equivalent to another legal act by the debtor through which the debtor loses or can no longer assert a right or through which a property claim against him is obtained or becomes enforceable.

(3) Section 130 (2) and (3) apply accordingly.

According to Section 132 (1) InsO, legal acts can be contested which were carried out within three months before the application was made or afterwards and which directly disadvantage creditors in insolvency proceedings. This applies, for example, if the debtor suffers a loss of assets as a result of a legal transaction, for example by paying an excessive purchase price. Furthermore, the beneficiary creditor must have been aware of the debtor's insolvency or of the application.

Section 132 (2) InsO allows the contestation of legally relevant omissions on the part of the debtor. This includes, for example, the failure to raise an advantageous objection in court proceedings.

Intentional disadvantageous legal act, § 133 InsO

(1) A legal act is contestable that the debtor has carried out in the last ten years before the application for the opening of insolvency proceedings or after this application with the intent to disadvantage his creditors if the other part at the time of the act has the intent of Debtor knew. This knowledge is presumed if the other part knew that the debtor was threatened with insolvency and that the act was prejudicial to the creditors.

(2) If the legal act grants or enables the other party to secure or satisfy, the period in accordance with paragraph 1 sentence 1 is four years.

(3) If the legal act granted or enabled the other party to obtain security or satisfaction which the latter could claim in the manner and at the time, the impending insolvency of the debtor pursuant to paragraph 1 sentence 2 shall be replaced by the one that has occurred. If the other party had made a payment agreement with the debtor or granted the debtor in some other way a payment facility, it is assumed that he was not aware of the debtor's insolvency at the time of the act.

(4) A paid contract concluded by the debtor with a related party (Section 138) through which the bankruptcy creditors are directly disadvantaged is contestable. Avoidance is excluded if the contract was concluded earlier than two years before the application to open the contract or if the other party was not aware of the debtor's intention to disadvantage the creditors at the time the contract was concluded.

Paragraph 1

Section 133 (1) sentence 1 InsO allows legal acts of the debtor to be contested that were carried out up to ten years before the filing of the insolvency application or afterwards and that the debtor undertook with the intent to disadvantage his creditors. This is the case when the debtor approves or even intends that as a result of his act his creditors will suffer a disadvantage. Since the legislature particularly disapproves of this behavior, it allows such actions to be challenged for a particularly long period of time. For a challenge it is also necessary that the beneficiary creditor knows about the intent of the debtor.

Section 133 (1) sentence 2 InsO makes it easier for the insolvency administrator to provide evidence with regard to the subjective characteristics, which are usually difficult to prove: The beneficiary's knowledge of the debtor's intent to discriminate is presumed if he knew that his debtor was threatened with insolvency and that the act would other creditors disadvantaged. The prevailing view in jurisprudence applies this knowledge analogously to the subjective criteria of the debtor: If the law assumes that the creditor is aware of the debtor's intent, this intent can be assumed even more.

Furthermore, jurisprudence attaches indicative effect to numerous behaviors of debtors and creditors for the subjective criteria required by Section 133 (1) InsO. This applies, for example, to the existence of incongruent cover within the meaning of Section 131 InsO. Such coverage is unusual, which is why it suggests to the creditor that the debtor is suffering from financial difficulties. Therefore, the existence of incongruent cover allows the assumption that the debtor, with the knowledge of the beneficiary, accepted a creditor disadvantage. If, for example, a lender can subsequently order a loan security for his repayment claim against the debtor without this having been agreed in the loan contract, he runs the risk of this being interpreted as deliberate disadvantage to creditors. The assumption of deliberate disadvantage for creditors is also obvious if the creditor subsequently grants the debtor a deferral or the debtor only fulfills his obligations in installments after considerable pressure from the creditor. The indicative effect of such circumstances is reduced, however, if the parties involved assume with a certain degree of certainty that the debtor can stabilize his financial situation, since this speaks against deliberate disadvantage of the creditors.

According to the case law, the following signs also suggest that the beneficiary is aware of the intent to discriminate against creditors:

  • Non-payment by the debtor without an objective objection to the creditor's claim ("suspension of payments")
  • Unredeemed direct debits
  • Reminders
  • Threat of the creditor with a lawyer, collection or foreclosure
  • Granting a payment facility (installment payment agreement)
  • Threat of the obligee with the termination of the business relationship ("delivery stop" and "main creditor")
  • Development of total liabilities
  • Behavior of the debtor in the event of a reminder and installment payment agreement
  • Change of the payment term ("switch to prepayment")
  • Payment agreements not adhered to (installment payment agreement)
  • Communication between creditor and debtor

The overly strong interpretation with regard to assumed knowledge led to a change in the legal conceptions at the Federal Court of Justice, so that the rights of suppliers and other creditors were in turn strengthened through recent case law. According to this case law, various constellations of payment stagnation or the choice of words in communication can no longer be interpreted as knowledge of insolvency without further evidence. As a result of the changed legal conception, insolvency administrators and specialized service providers are increasingly examining the communication between those involved for threats and other indications in order to prove knowledge. How the evidence is to be weighted in detail is answered differently in the case law. A single evidence of evidence can in principle already suffice, since judges are free in their assessment of evidence according to § 286 ZPO. However, the Federal Court of Justice increasingly demands an assessment of all evidence that speaks for and against knowledge and considers a schematic application of the evidence to be wrong.

Paragraphs 2 and 3

With paragraphs 2 and 3 added to the InsO on April 5, 2017, the contestation period for selected legal transactions is shortened and the burden of proof shifted in favor of the contestant. This privilege relates to securing or satisfying claims of the opposing party against the insolvency debtor, i.e. cover acts. However, other asset shifts are not included in the privilege and can therefore continue to be challenged over a period of ten years.

According to paragraph 3, a congruent cover only indicates the intention to disadvantage creditors if it occurs after the insolvency has occurred. Accordingly, it cannot develop any indicative effect if the insolvency only threatens. This is intended to take greater account of the fact that the debtor is free to choose which creditor he will satisfy before the opening of insolvency proceedings. Agreeing on payment facilitation, to which the case law previously ascribed indicative effect under certain circumstances, no longer facilitates the challenge. Rather, according to Section 133 (3) sentence 2 InsO, it is presumed that the creditor did not assume that the debtor was having payment difficulties. This leads to a reversal of the burden of proof, so that the insolvency administrator has to prove that the beneficiary creditor was aware of the intent of the debtor to disadvantage his other creditors.

The legislature decided to change the law due to the considerable burden on commercial transactions caused by the earlier version of Section 133 InsO and its broad interpretation by the case law. Since late payments and reminders could already be interpreted as evidence that a company knew of the impending insolvency of a business partner and that other creditors were deliberately disadvantaged as a result, small business owners in particular were exposed to great uncertainties if contractual partners failed to settle their debts. For criticism of the change in the law and the development of case law, see above under the origin and purpose of the insolvency challenge.

According to Art. 103j of the Introductory Act to the Insolvency Code , Section 133 InsO in its amended version is only partially applicable to those insolvency proceedings that were opened before the change in law came into force.

Paragraph 4

Section 133 (4) InsO contains a simplification of evidence in favor of the contesting insolvency administrator. This concerns paid contracts between the debtor and a related party that directly disadvantage the creditors: If such a contract was concluded within two years before filing for insolvency, the debtor's intent to discriminate and knowledge of the beneficiary creditor are presumed.

Free service, § 134 InsO

(1) A free performance by the debtor is contestable unless it was made earlier than four years before the application for the opening of insolvency proceedings.

(2) If the performance is aimed at a customary occasional gift of low value, it cannot be challenged.

According to Section 134 (1) InsO, services free of charge can be contested up to four years before filing for insolvency or afterwards. This ground for avoidance covers acts and omissions of the debtor that favor another without the debtor receiving anything in return. The extensive possibility of contesting such services is based on the one hand on the particularly high risk of abuse associated with unpaid actions. On the other hand, the legislature considers the purchaser to be less worthy of protection, since he receives a preferential treatment without having to provide his own service.

According to Section 134 (1) InsO, for example, donations to a party and the unselfish repayment of third-party debts can be contested. The reason for avoidance also includes payments made to someone else's liabilities as part of a cash pooling process .

Section 134 (2) InsO excludes contestation in accordance with Section 134 (1) InsO if the performance is a customary occasional gift of low value. These are services that are generally provided on the occasion of special events, such as birthday gifts and donations. A gift is of low value if it alone does not exceed a price of € 200 or in connection with other gifts does not exceed € 500.

Shareholder loan, Section 135 InsO

(1) A legal act is contestable which is for a shareholder's claim for the return of a loan within the meaning of Section 39 (1) No. 5 or for an equivalent claim

1. Has granted security if the act was carried out in the last ten years before the application for the opening of insolvency proceedings or after this application, or
2. Has granted satisfaction if the act was undertaken in the last year before the opening application or after this application.

(2) A legal act with which a company has granted satisfaction to a third party for a claim for the repayment of a loan within the deadlines specified in Paragraph 1 No. 2 is contestable if a partner had provided security for the claim or was liable as a surety; this applies mutatis mutandis to services on claims that correspond economically to a loan.

(3) If the debtor has been given an object for use or exercise by a partner, the claim for separation can not be asserted for the duration of the insolvency proceedings, but for a maximum of one year from the opening of the insolvency proceedings, if the object is for the continuation of the debtor's business is of major importance. The shareholder is entitled to compensation for the use or exercise of the object; The calculation is based on the average of the remuneration paid in the last year before the opening of the proceedings; in the case of a shorter duration of the transfer, the average during this period is decisive.

(4) Section 39 (4) and (5) apply accordingly.

Paragraph 1

The fulfillment and security of claims from shareholder loans can be contested via Section 135 (1) InsO . These are payments that a shareholder makes to his company. The advantage of such loans over capital contributions from the shareholder's point of view is that the repayment of loans to shareholders in the event of insolvency is subject to less strict conditions than the repayment of contributions. In addition, shareholders can use their position in society to protect their own loan claims with loan collateral in order to gain advantages over other creditors. In order to prevent shareholders from obtaining advantages by granting loans to their company, Section 135 (1) InsO allows for easier contestation of certain acts: While the satisfaction of a claim from a shareholder loan can be contested up to one year before filing for insolvency, Security acts can even be challenged up to ten years before this event. The different avoidance periods are due to the fact that the collateralization of a claim can usually be more inconspicuous than its fulfillment.

Paragraph 2

Section 135 (2) InsO allows the satisfaction of a lender to be challenged by an insolvent company. The prerequisite for this is that the lender could also have demanded payment from the shareholder. According to § 44a InsO, this should be primarily liable. If the creditor is still satisfied with a service by the company, this is contestable.

Silent Society, Section 136 InsO

(1) A legal act is contestable through which a silent partner is granted back the contribution in whole or in part or his share of the loss incurred is waived in whole or in part if the underlying agreement is in the last year before the application for the opening of insolvency proceedings on the assets of the Owner of the trade or after this request has been made. This also applies if the silent partnership has been dissolved in connection with the agreement.

(2) Avoidance is excluded if a reason for opening only occurred after the agreement.

According to Section 136 (1) InsO, the reimbursement of a deposit or the waiver of a loss sharing in favor of a silent partner can be contested up to one year before filing for insolvency. This reason for avoidance can be traced back to the special position of a silent partner: According to § 236 of the Commercial Code , the latter is entitled to reclaim his contribution as an insolvency creditor. However, the silent partner is closer to the insolvent company than an outside insolvency creditor, which is why the legislature considers the extended contestability of a preferential treatment for the silent partner to be appropriate.

Section 136 (2) of the InsO excludes a contestation according to (1) if the reason for insolvency only occurred after the beneficiary was agreed.

Exclusion of contestation (cash transaction privilege), § 142 InsO

(1) A performance by the debtor for which an equivalent consideration reaches his property directly can only be challenged if the requirements of Section 133 (1) to (3) are met and the other party has recognized that the debtor acted unfairly.

(2) The exchange of service and consideration is immediate if it takes place in a close temporal context according to the type of services exchanged and taking into account the customs of business transactions. If the debtor grants his employee remuneration, there is a close temporal connection if the period between work and the granting of remuneration does not exceed three months. The granting of remuneration by the debtor is equivalent to the granting of this remuneration by a third party in accordance with Section 267 of the German Civil Code if it was not apparent to the employee that a third party performed the service.

§ 142 InsO excludes the contestability of legal acts in which there is an equivalent exchange of services between debtor and creditor, which is carried out immediately in terms of time. With this standard, the legislature aimed to protect certain legal transactions from being challenged for insolvency, since there is no threat to the interests of creditors if a service provided from the debtor's assets is fully compensated by a consideration.

The time span within which the services must be provided in order to be considered immediate depends largely on the business practices of the respective industry. It is necessary that the services provided by both parties are closely related in terms of subject matter and time. As a rule, such a connection is only assumed for a period of a few weeks. In the event that a service is remuneration, Section 142, Paragraph 2, Clause 2 of the InsO specifies the concept of immediacy based on the period in which the insolvency money is paid out to three months.

Until April 5, 2017, the regulation of § 142 InsO, referred to as the cash transaction privilege, could not prevent a contestation according to § 133 InsO, since the standard in its old version explicitly excluded the offense of willful contestation from its scope. Nevertheless, the Federal Court of Justice also applied the principles of cash transactions in the context of the contestation according to Section 133 InsO if a situation similar to cash transactions was given; but only with restrictions. Since the change in the law, a contestation according to Section 133, Paragraphs 1–3 InsO can also be excluded as long as the debtor did not behave unfairly or the opponent was not aware of his unfair behavior. The debtor behaves more unfairly, for example, when he squanders his money or deliberately disadvantages his creditors.

Legal Consequences of Avoiding Insolvency

Right to restitution, § 143 InsO

(1) What is sold, given away or given up from the debtor's assets as a result of the contestable act must be returned to the bankruptcy estate. The regulations on the legal consequences of unjust enrichment, for which the recipient is aware of the lack of the legal reason, apply accordingly. Interest is only payable on a monetary debt if the requirements of debtor default or Section 291 of the German Civil Code are met; Any further claim to the return of uses of an amount of money obtained is excluded.

(2) The recipient of a free service only has to return it if it is enriched by it. This does not apply as soon as he knows or, according to the circumstances, must know that the free service is disadvantageous to the creditors.

(3) In the event of a contestation pursuant to Section 135 (2), the partner who provided the security or was liable as a surety must reimburse the insolvency estate for the benefit granted to the third party. The obligation only exists up to the amount with which the partner was liable as surety or which corresponds to the value of the security provided by him at the time of the return of the loan or the performance on the equivalent claim. The partner is released from the obligation if he makes the objects, which had served the obligee as security, available to the bankruptcy estate.

The insolvency contestation gives rise to a debt-law right to restitution under Section 143 (1) sentence 1 InsO: The contestant is obliged to return the performance received to the insolvency estate. The insolvency administrator can collect this claim. He can therefore demand that the contestant perform or sue for the claim. The claim arises as soon as its requirements are met, i.e. when insolvency proceedings are opened. Therefore, it does not need to be asserted by the insolvency administrator in order to reach maturity .

According to the legal situation valid until April 5, 2017, from the time the proceedings were opened, the opponent was in default with the fulfillment of the claim under Section 143 (1) sentence 1 InsO, as this was considered pending when the contestable act was carried out. Therefore, in addition to the restitution of the contestation amount , the opponent owed default interest . With the introduction of section 143 (1) sentence 3 InsO, this obligation to pay interest does not apply until the requirements of section 286 of the BGB are met. This requires in principle that the publication of the asset concerned by the contested measure called for is.

Section 145 InsO grants the insolvency administrator the possibility of contesting the legal successor of a beneficiary debtor, such as an heir . This comes into consideration if the legal successor knew of the circumstances that justified the contestability of the legal act. A challenge can also take place if the acquirer is one of the related parties named in Section 138 InsO and if he has obtained the benefit free of charge.

Claims of the opposing party, § 144 InsO

(1) If the recipient of a contestable performance grants back what has been obtained, his claim is revived.

(2) A consideration is to be reimbursed from the insolvency estate, insofar as it is still distinguishable in it or insofar as the estate has been enriched by its value. In addition, the recipient of the contestable performance can only assert the claim for the return of the consideration as an insolvency creditor.

Section 144 InsO grants the opponent two claims by which he is to be made as if the contested act had not been carried out:

According to § 144 paragraph 1 InsO, the claim of the contestant, which has been fulfilled by the contested act, is revived retrospectively after he has granted the contested performance back to the mass. This claim is particularly important when contesting cover, as it is often not the transaction on which the cover is based that can be contested, but rather only the action that serves to fulfill it. Therefore, a claim, the fulfillment of which was canceled retrospectively by the challenge, can be asserted in the insolvency proceedings.

According to § 144 Paragraph 2 Clause 1 InsO, the opposing party can also demand that the insolvency administrator receive back the consideration that he has provided for the contested service. This right exists if a binding transaction has been contested. Since in this case there is no reason for the insolvency administrator to remain in possession of the services already provided by the contestant, the latter can reclaim the services. The prerequisite for this is that the consideration is still distinguishable in terms of quantity. This is lacking, for example, if the item provided has been mixed or processed . In such a case, performance can only be challenged if it enriches the crowd . This claim has the quality of a mass liability , so it must be satisfied in preference to other insolvency creditors.

Procedural matters

The insolvency administrator asserts the challenge. In the case of insolvency proceedings in self- administration , the trustee is commissioned to contest insolvency in accordance with Section 280 InsO , since no insolvency administrator is appointed in this type of procedure. In the insolvency plan procedure , the creditors involved can agree in the plan how the insolvency avoidance will be carried out. In the consumer insolvency proceedings, up to July 1, 2014, every creditor was able to assert claims from contestation in accordance with Section 313 (2) sentence 1 InsO. Since the creditors rarely made use of this , the legislature repealed this regulation . Since then, the challenge has been made solely by the insolvency administrator.

In principle, ordinary courts are responsible for litigation involving contestations . An exception applies to appeals against employees of the debtor: here the jurisdiction lies with labor courts , since it is a matter of civil law disputes between employee and employer from an employment relationship within the meaning of § 2 ArbGG .

Avoidance under the Avoidance Act

Even outside of the insolvency proceedings, individual creditors can contest certain legal acts of the debtor. The structure and purpose of such challenges are similar to those of the insolvency challenge: Legal acts of a debtor that disadvantage their creditors are to be reversed. This contestation is regulated in the Contestation Act (AnfG). It is useful, for example, if it is foreseeable that insolvency proceedings would not pay off for the creditor, for example because the debtor has insufficient assets to carry out the proceedings.

Legal situation in other states

In Austrian insolvency law , the challenge is regulated in §§ 27–43 of the Insolvency Code (IO). As in German law, these norms focus on several grounds for avoidance, which provide for the cancellation of certain legal acts by the debtor. These have great parallels to the German regulations: For example, Sections 30, 31 IO allow the contestation of cover acts under certain circumstances. Section 28 IO allows the contestation of legal acts that have been carried out up to ten years before the opening of insolvency proceedings and through which the debtor, with the approval of the beneficiary, wants to disadvantage his creditors. Furthermore, the norm allows the contestation of the debtor's assets to be diverted, provided that this occurred within one year of the opening of proceedings and the creditor had to recognize this.

The Swiss Debt Enforcement and Bankruptcy Law allowed as the German insolvency law contesting gratuitous dispositions of the debtor and the avoidance of legal action that has made with recognizable disadvantage intent of the debtor. In addition, it allows the contestation of actions that were carried out at a time when the debtor was over-indebted.

The insolvency law of the USA also standardizes several cases, in the presence of which legal acts by the debtor can be reversed. However, the legal system exempts certain transactions from this, for example if they lead to a loan being granted to the debtor or take place in the normal course of business.

The Finnish Insolvenzrecht contains a general clause that allows the avoidance of such acts, which is preferably a creditor or in an inappropriate manner which is at least partly responsible for achieving the default of the debtor. It also has special regulations for certain legal acts by the debtor.

literature

  • Peter de Bra, Rainer Riggert: §§ 129–147. In: Eberhard Braun (Ed.): Insolvency Code: InsO with EuInsVO (new version): Comment . 7th edition. CH Beck, Munich 2017, ISBN 978-3-406-69675-6 .
  • Christine Ede, Heribert Hirte: §§ 129–147. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (Hrsg.): Insolvency Code: Comment. 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
  • Alexander Fridgen: The Legal Consequences of Avoiding Insolvency. Intentional avoidance from the point of view of damages . Publishing house Dr. Kovac, Hamburg 2009, ISBN 978-3-8300-4234-1 .
  • Hans-Peter Kirchhof, Nils Freudenberg, Markus Gehrlein: §§ 129–147 . In: Hans-Peter Kirchhof, Horst Eidenmüller, Heinrich Schoppmeyer (eds.): Munich Commentary on the Insolvency Code . 4th edition. tape 2: §§ 80-216 . CH Beck, Munich 2019, ISBN 978-3-406-71692-8 .
  • Rolf Leithaus: §§ 129–147. 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 , Hans Ganter, Alexander Weinland, Volker Büteröwe: §§ 129–147 . In: Karsten Schmidt (Ed.): Insolvency Regulation: InsO with EuInsVO . 19th edition. CH Beck, Munich 2015, ISBN 978-3-406-68250-6 .

Web links

Individual evidence

  1. ↑ § 280 InsO - single standard. Retrieved June 10, 2019 .
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  3. ↑ a b Karsten Schmidt: Before § 129 , marginal no. 1. In: Karsten Schmidt (Ed.): Insolvency Code: InsO with EuInsVO . 19th edition. CH Beck, Munich 2015, ISBN 978-3-406-68250-6 .
  4. ↑ a b Heribert Hirte, Christine Ede: Before § 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 .
  5. ↑ Peter de Bra: § 129 , Rn. 3. In: Eberhard Braun (Hrsg.): Insolvency Code: InsO with EuInsVO (new version): Comment . 7th edition. CH Beck, Munich 2017, ISBN 978-3-406-69675-6 .
  6. ↑ Roland Pfefferle: On the reform of the bankruptcy avoidance and the kickback lock . In: Zeitschrift für Wirtschaftsrecht 1984, p. 147 (150).
  7. ↑ Wolfram Henckel: The denial of creditors - a suitable means to eliminate reductions in the bankruptcy estate? In: Zeitschrift für Wirtschaftsrecht 1982, p. 391.
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  9. ↑ ZInsO edition 03/2017: Determination of the time of insolvency. (PDF) Retrieved September 26, 2017 .
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  12. ↑ Heribert Hirte, Christine Ede: 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 .
  13. ↑ Reinhard Willemsen, Christiane Kühn: Law to improve legal certainty in the event of disputes - all is well that ends well? In: Betriebs-Beratung 2017, p. 649.
  14. ↑ Martin Henssler, David Markworth: Practical problems of the application of § 133 I 1 InsO . In: New Journal for Insolvency and Reorganization Law 2016, p. 986.
  15. ↑ Lutz Paschen: Reform of the contestation of intent - the economy sticks to the demand for a legislative correction . In: Journal for Insolvency Law 2014, p. 2485.
  16. ^ Gravenbrucher circle: Proposal of the Gravenbrucher circle to reform the right of avoidance . In: Journal for Insolvency Law 2014, p. 1704.
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  19. ↑ Olaf Hiebert: The information and warning requirements of tax advisers in the tension on the insolvency contestation of fees - Note to BGH, 26/01/2017 - IX ZR 285/14 . In: NWB 2017, pp. 1678–1681
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  21. ↑ " Avoidance of Insolvency - quo vadis?" Interview with Dr. Volker Hees and Markus Freitag on the reform of the insolvency challenge. Insolvenzblog.de from February 17, 2017 (accessed June 21, 2017)
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  26. ↑ BGHZ 170, 196 .
  27. ↑ a b Reinhard Bork: Introduction to insolvency law . 9th edition. Mohr Siebeck, Tübingen 2019, ISBN 978-3-16-156977-7 , Rn. 246 f.
  28. ↑ Dr. Olaf Hiebert: The insolvency contestation of third party payments according to § 133 Abs. 1 InsO - At the same time comment on OLG Naumburg, ruling. 09.12.2015 - 5 U 144/15, in: Journal for the entire insolvency law, ZInsO 2016, 622 - 624 . 2016.
  29. ↑ BGHZ 162, 143 .
  30. ↑ a b Christine Ede, Heribert Hirte: § 129, Rn. 119. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (ed.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
  31. ↑ Reinhard Bork: Introduction to Insolvency Law . 9th edition. Mohr Siebeck, Tübingen 2019, ISBN 978-3-16-156977-7 , Rn. 248.
  32. ↑ Rolf Leithaus: § 129 , 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 .
  33. ↑ Christine Ede, Heribert Hirte: § 140, Rn. 2. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (eds.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
  34. ↑ Rolf Leithaus: § 140 , Rn. 3. In: Dirk Andres, Rolf Leithaus, Michael Dahl (eds.): Insolvency Code: (InsO); Comment . 4th edition. CH Beck, Munich 2018, ISBN 978-3-406-71684-3 .
  35. ↑ Rolf Leithaus: § 140 , 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 .
  36. ↑ Federal Court: IX ZR 102/03 . In: Neue Juristische Wochenschrift 2007, p. 1588 (1590).
  37. ↑ Federal Court of Justice: IX ZR 30/07 . In: New journal for insolvency and restructuring law 2008, p. 89.
  38. ↑ Christine Ede, Heribert Hirte: § 140, Rn. 28. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (Ed.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
  39. ↑ BGHZ 174, 228 .
  40. ↑ Reinhard Bork: Introduction to Insolvency Law . 9th edition. Mohr Siebeck, Tübingen 2019, ISBN 978-3-16-156977-7 , Rn. 252.
  41. ↑ Federal Court: IX ZR 74/11 . In: Neue Juristische Wochenschrift 2012, p. 1959.
  42. ↑ Christine Ede, Heribert Hirte: Before § 129, Rn. 9. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (ed.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
  43. ↑ Peter de Bra: § 129 , Rn. 67. In: Eberhard Braun (ed.): Insolvency regulation: InsO with EuInsVO (new version): Comment . 7th edition. CH Beck, Munich 2017, ISBN 978-3-406-69675-6 .
  44. ↑ Peter de Bra: § 130 , Rn. 8. In: Eberhard Braun (Ed.): Insolvency Code: InsO with EuInsVO (new version): Comment . 7th edition. CH Beck, Munich 2017, ISBN 978-3-406-69675-6 .
  45. ↑ Reinhard Bork: Introduction to Insolvency Law . 9th edition. Mohr Siebeck, Tübingen 2019, ISBN 978-3-16-156977-7 , Rn. 260 ff.
  46. ↑ BGHZ 149, 178 (184).
  47. ↑ Federal Court of Justice: IX ZR 149/14 . In: Journal for Insolvency Law 2015, p. 396 (399).
  48. ↑ Federal Court: IX ZR 228/03 . In: New magazine for insolvency and restructuring law 2007, p. 36 (37).
  49. ↑ Reinhard Bork: Introduction to Insolvency Law . 9th edition. Mohr Siebeck, Tübingen 2019, ISBN 978-3-16-156977-7 , Rn. 262.
  50. ↑ Peter de Bra: § 131 , Rn. 2. In: Eberhard Braun (Hrsg.): Insolvency Code: InsO with EuInsVO (new version): Comment . 7th edition. CH Beck, Munich 2017, ISBN 978-3-406-69675-6 .
  51. ↑ BGHZ 33, 389 (392).
  52. ↑ Federal Court: IX ZR 57/09 . In: New Journal for Insolvency and Reorganization Law 2010, p. 439.
  53. ^ Federal Court of Justice: IX ZR 57/08 . In: New Journal for Insolvency and Reorganization Law 2012, p. 81.
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  55. ↑ Federal Court of Justice: IX ZR 184/04 . In: New magazine for insolvency and restructuring law 2005, p. 671.
  56. ↑ BGHZ 136, 309 (313).
  57. ↑ Christine Ede, Heribert Hirte: § 131, Rn. 60. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (Ed.): Insolvency Code: Comment . 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
  58. ↑ Federal Court: IX ZR 211/01 . In: New Journal for Insolvency and Reorganization Law 2002, p. 378.
  59. ↑ Federal Court of Justice: IX ZR 194/02 . In: New Journal for Insolvency and Reorganization Law 2003, p. 433.
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  67. ↑ Federal Court of Justice: IX ZR 93/06 . In: New Journal for Insolvency and Reorganization Law 2008, p. 231.
  68. ↑ Federal Court of Justice: IX ZR 109/15 . In: New Journal for Insolvency and Reorganization Law 2016, p. 266.
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  72. ↑ Andre Koppel: Demonstration in a digital world . In: Journal for Insolvency Law 2016, p. 2291.
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  74. ↑ Peter de Bra: § 133 , Rn. 28. In: Eberhard Braun (Ed.): Insolvency Regulation: InsO with EuInsVO (new version): Comment . 7th edition. CH Beck, Munich 2017, ISBN 978-3-406-69675-6 .
  75. ↑ Peter de Bra: § 133 , Rn. 29. In: Eberhard Braun (ed.): Insolvency regulation: InsO with EuInsVO (new version): Comment . 7th edition. CH Beck, Munich 2017, ISBN 978-3-406-69675-6 .
  76. ↑ BT-Drs. 18/7054 , p. 18.
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  79. ↑ Reason for changing § 133 InsO in BT-Drs. 18/7054
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  86. ↑ Federal Court of Justice: IX ZR 441/00 . In: New magazine for insolvency and restructuring law 2005, p. 323.
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  89. ↑ Federal Court: IX ZR 84/05 . In: Neue Juristische Wochenschrift Jurisdiction Report 2006, p. 1136.
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  91. ↑ Federal Court of Justice: IX ZR 77/15 . In: New Journal for Insolvency and Reorganization Law 2016, p. 359.
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  94. ↑ Rainer Riggert: § 136 , Rn. 17-18. In: Eberhard Braun (Ed.): Insolvency Code: InsO with EuInsVO (new version): Comment . 7th edition. CH Beck, Munich 2017, ISBN 978-3-406-69675-6 .
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  101. ↑ Dr. Olaf Hiebert: Insolvency contestation according to § 133 Abs. 1 InsO - on the cash-like situation as evidence as well as the extended and expanded retention of title, in: Journal for the entire Insolvency Law, ZInsO 2015, 621 - 624 . 2015.
  102. ↑ Michael Dahl, Daniel Schmitz: The new insolvency avoidance law . In: Neue Juristische Wochenschrift 2017, p. 1505 (1509–1510).
  103. ↑ Christine Ede, Heribert Hirte: § 143, Rn. 1. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (ed.): Insolvency Code: Comment. 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
  104. ↑ Christine Ede, Heribert Hirte: § 143, 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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  106. ↑ Federal Court of Justice: IX ZR 96/04 . In: Journal for Insolvency Law 2007, p. 261.
  107. ↑ Christine Ede, Heribert Hirte: § 143, Rn. 34. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (ed.): Insolvency Code: Comment. 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
  108. ↑ Peter de Bra: § 133 , Rn. 18. In: Eberhard Braun (Hrsg.): Insolvenzordnung: InsO with EuInsVO (new version): Comment . 7th edition. CH Beck, Munich 2017, ISBN 978-3-406-69675-6 .
  109. ↑ Rainer Riggert: § 144 , Rn. 1. In: Eberhard Braun (Hrsg.): Insolvency regulation: InsO with EuInsVO (new version): Comment . 7th edition. CH Beck, Munich 2017, ISBN 978-3-406-69675-6 .
  110. ↑ Rainer Riggert: § 144 , Rn. 3. In: Eberhard Braun (Hrsg.): Insolvency Code: InsO with EuInsVO (new version): Comment . 7th edition. CH Beck, Munich 2017, ISBN 978-3-406-69675-6 .
  111. ↑ Rolf Leithaus: § 144 , 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 .
  112. ↑ Rainer Riggert: § 144 , Rn. 6, 12, 13. In: Eberhard Braun (Hrsg.): Insolvenzordnung: InsO with EuInsVO (new version): Comment . 7th edition. CH Beck, Munich 2017, ISBN 978-3-406-69675-6 .
  113. ^ Ulrich Foerste: Insolvency law . 6th edition. CH Beck, Munich 2014, ISBN 978-3-406-66842-5 , Rn. 95.
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  115. ↑ Christine Ede, Heribert Hirte: § 129, Rn. 75-76. In: Wilhelm Uhlenbruck, Heribert Hirte, Heinz Vallender (Hrsg.): Insolvency Code: Comment. 14th edition. Vahlen, Munich 2015, ISBN 978-3-8006-4664-7 .
  116. ^ Gerhard Kreft: § 129 , Rn. 85. In: Gerhard Kreft (Ed.): Insolvenzordnung . 7th edition. CF Müller, Heidelberg 2014, ISBN 978-3-8114-4310-5 .
  117. ↑ Joint Senate of the Supreme Courts of Justice of the Federation: GmS OGB 1/09 . In: Neue Juristische Wochenschrift 2011, p. 1211.
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  119. ^ Norbert Abel: Austria , Rn. 42-46. In: Hans-Peter Kirchhof, Horst Eidenmüller, Rolf Stürner (eds.): Munich Commentary on the Insolvency Code . 3. Edition. tape 4 : EuInsVO 2000, Art. 102 and 102a EGInsO, EuInsVO 2015. Verlag CH Beck, Munich 2016, ISBN 978-3-406-65044-4 .
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  121. ^ Britta Grauke, Maurice Horwitz: USA , Rn. 45-47. In: Hans-Peter Kirchhof, Horst Eidenmüller, Rolf Stürner (eds.): Munich Commentary on the Insolvency Code . 3. Edition. tape 4 : EuInsVO 2000, Art. 102 and 102a EGInsO, EuInsVO 2015. Verlag CH Beck, Munich 2016, ISBN 978-3-406-65044-4 .
  122. ↑ Tarja Wist, Christoffer Waselius: Finland , Rn. 77-81. In: Hans-Peter Kirchhof, Horst Eidenmüller, Rolf Stürner (eds.): Munich Commentary on the Insolvency Code . 3. Edition. tape 4 : EuInsVO 2000, Art. 102 and 102a EGInsO, EuInsVO 2015. Verlag CH Beck, Munich 2016, ISBN 978-3-406-65044-4 .
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