Costs of bankruptcy
Under cost of bankruptcy proceedings understands § 54 Insolvency Act (InsO)
- the court costs for the bankruptcy proceedings;
- the remuneration and expenses of the (provisional) insolvency administrator and the members of the creditors' committee . The amount of remuneration is regulated in detail in the Remuneration Ordinance under Insolvency Law (InsVV).
General
The coverage of these costs is a prerequisite for opening insolvency proceedings, Section 26 InsO. The costs of the procedure are served before all other costs, they are also referred to as bulk costs - probably based on Section 58 of the bankruptcy code - although they are not identical to the bulk costs under the bankruptcy code. In particular, they take precedence over claims by creditors.
The court costs are divided into fees for the application to open insolvency proceedings on the one hand and fees for carrying out the insolvency proceedings on the other. The court costs law with the list of costs is decisive for the calculation . The expenses are also regulated in the list of costs under the Court Fees Act.
In terms of remuneration and expenses, the remuneration of the (provisional) insolvency administrator is usually the most significant. Not least for this reason, it is also the subject of numerous appeal court decisions.
calculation
The amount of the remuneration is regulated in detail in the InsVV (Insolvency Law Remuneration Ordinance). It amounts to at least € 1,000 ( Section 2 Paragraph 2 InsVV). Moreover, the remuneration is insolvent and the number of notifying creditors dependent. Section 2 (1) InsVV provides for a graduation according to which 40% of the first € 25,000 goes to the insolvency administrator , and 0.5% of the amount exceeding € 50,000,000. The regulation provides for numerous surcharges and deductions.
The remuneration of the provisional insolvency administrator is based on the remuneration of the insolvency administrator in accordance with § 11 InsVV. It is usually 25% of this remuneration.
The calculation of the remuneration of the members of the creditors' committee is set out in §§ 17 f. InsVV regulated. Hourly rates between € 35 and € 95 plus expenses and sales tax are provided.
The costs of the procedure can be deferred on request to natural persons who submit an application for discharge of residual debt , Section 4a InsO (for the reform project, see period of conduct ). In contrast to legal aid , the deferral of the costs of the insolvency proceedings cannot be refused on the grounds that the debtor culpably caused the loss of property.
Legal policy
Most bankruptcy proceedings have extremely low distributions or no distributions at all to creditors. This is not least due to the fact that the costs of the process consume the majority of the mass, especially with small masses of a few thousand euros. The court, the expert who examines the opening prerequisites, the provisional and finally the final insolvency administrator are to be served. As a rule, insolvency proceedings can only be opened if the amount is over € 2,000.
Procedures are conceivable and not so rare that require a lot of effort due to the confusing circumstances of the debtor. The resulting surcharges mean that the mass must be much larger so that the procedure can be opened. From the point of view of the creditors, it is difficult to understand that the entire mass will ultimately be collected by the insolvency administrator. In Germany, however, the insolvency administrator is usually a freelancer, in any case he is not a civil servant or employee in the public service. Since, against this background, a free activity is out of the question, the alternatives are, on the one hand, to have the proceedings handled by the bankruptcy court and, on the other hand, to waive the proceedings. In the latter case, most of the creditors would receive nothing, since the professional creditors (such as banks) did not leave any liable assets to the non-institutional creditors through collateral, superior knowledge and available collection apparatus. A debtor who is no longer marketable would also continue to operate in the market and could damage other creditors.
Another reason for low rates is that the application for insolvency is often filed late (see Delayed insolvency ). Even the liability threatened only in certain cases (e.g. § 64 , § 84 GmbHG ) does not prevent the enormous number of delayed insolvencies.
See also
Web links
Individual evidence
- ↑ List of costs for the Court Fees Act Nos. 2310, 2311, 2320 ff., 2330 ff.
- ↑ List of costs for the Court Fees Act No. 9000 ff.
- ^ Sina Lindner: BGH: Remuneration of the provisional administrator. Retrieved on March 27, 2017 (German).
- ↑ Federal Court of Justice , (BGH), decision of September 21, 2006 , Az. IX ZB 24/06, full text.
