Mass inadequacy

from Wikipedia, the free encyclopedia

Mass inadequacy is a term from German and Austrian insolvency law , which u. a. is regulated in the German Insolvency Code (InsO) in § 207 to § 216 InsO. The insolvency administrator has to respect in the context of insolvency proceedings, the insolvency estate , so the remaining assets in the insolvency proceedings, insufficient, the costs of the insolvency proceedings ( 54 § Insolvency Act) as well as other mass liabilities ( § 55 to cover InsO). If the mass is not even enough for the costs of the insolvency proceedings (mass poverty) , the insolvency proceedings will be discontinued in accordance with Section 207 InsO.

Requirements and notification

If the insolvency administrator determines after the opening of insolvency proceedings that the bankruptcy estate is not sufficient to meet the bankruptcy's liabilities (so-called insolvency in bankruptcy), he will notify the bankruptcy court of insolvency . It is also possible to notify an impending mass inadequacy if the mass will probably not be sufficient to meet the existing other mass liabilities when they become due (see Section 208 (1) sentence 2 InsO). The notification of the (threatening) mass inadequacy must be made public and the mass creditors concerned must also be specifically served.

Satisfaction of mass debts

The display of the mass inadequacy leads to a downgrade of existing mass liabilities. For their satisfaction, the ranking stipulated in § 209 InsO applies , according to which

  • primarily the costs of insolvency proceedings are satisfied ( Section 54 InsO):
    • the court costs for the bankruptcy proceedings
    • the remuneration and expenses of the insolvency administrator
    • the remuneration and expenses of the members of the creditors' committee
  • and secondarily the other mass liabilities ( § 55 InsO) are satisfied:
    • Liabilities that the insolvency administrator has established within his sphere of activity
    • Claims from mutual contracts of the insolvency debtor, in which the insolvency administrator entered after the opening of insolvency proceedings ( Section 103 InsO)
    • Claims from mutual contracts of the administrator, which are to be fulfilled by law
    • Claims from unjustified enrichment of the estate after the opening of insolvency proceedings.

Further legal consequences

Foreclosure measures for these claims are inadmissible ( Section 210 InsO). For this reason, there is no need for legal protection in an ongoing legal dispute for payment of a mass liability , which is why the plaintiff has to convert his action for a performance to a declaratory action . According to the case law of the Federal Court of Justice, no enforceable cost- fixing order may be issued in the subsequent cost- fixing procedure .

After the existing bankruptcy estate has been distributed, the insolvency proceedings are to be discontinued ( Section 211 InsO).