Kickback lock
The kickback block is a term used in German insolvency law and regulated in Section 88 of the Insolvency Code (InsO) (previous law: Sections 28, 87, 104 VglO , Section 7 (1) sentence 3 GesO ). It allows certain enforcement measures to become ineffective after the initiation of proceedings.
Basics
The kickback barrier is an expression of the insolvency law principle of equal treatment of all creditors ( par conditio creditorum ). This principle states that the assets existing at the time of the opening of the insolvency proceedings and the assets acquired after this point in time must be distributed evenly to the bankruptcy creditors . The risk of individual creditors gaining advantages over the others, possibly with the help of the debtor, is prevented in many areas by the bankruptcy code. In particular, Sections 129 ff. InsO declare legal acts that run counter to equal treatment to be contestable ( insolvency contestation , not to be confused with general contestation under civil law or even under company law ). The insolvency challenge is often linked to special, above all subjective, conditions. This, such as knowledge of the insolvency on the part of the contestant , is naturally difficult to prove, even if the law and case law have created various simplifications of evidence . Section 88 InsO, on the other hand, does not focus on subjective requirements. Securities to the debtor's assets that were obtained in the last month before the application for the opening of insolvency proceedings or after this application through foreclosure are ineffective by law.
A right of separation , which falls under Section 88 InsO, does not remove the disadvantage of creditors within the meaning of Section 129 (1) InsO.
Deadlines
In consumer insolvency proceedings, the deadline for an application by the debtor in accordance with Section 88 (2) InsO is three months. When calculating the deadline, Section 139 InsO must also be observed.
It does not matter whether the application was made by the debtor ( own application ) or by a creditor. Furthermore, it does not matter that the application is submitted to the competent court.
scope
Section 88 InsO specifically covers seizure measures . Both are civil enforcement actions as well as those of the management execution detected. Nor is it important whether the enforcement takes place by way of interim legal protection or whether it is final. In addition to the seizure , the entry of a preregistration by way of foreclosure is also subject to the kickback lock.
The kickback lock applies to everyone. If the insolvency administrator declares the release of the object belonging to the insolvency estate, the security will in any case become effective again if it is still entered in the land register or shipping register.
criticism
A decisive weakness of the kickback barrier is that it does not capture satisfaction through foreclosure. To this extent, rescission is reserved for the insolvency contestation. It should also be noted that section 110 (2) sentence 2 InsO equates enforcement in rental and lease claims with the legal transaction and thus removes it from the scope of section 88 InsO. Again, there is only room for the insolvency contestation.
Examples
On February 1, the house bank of the future debtor is sent the garnishment order from the tax office for € 500. At this point in time, the account has a debit of € 100. On February 15, the tax office will apply to the competent bankruptcy court to open insolvency proceedings. The bankruptcy proceedings will open on March 1st. On March 16, € 200 will be credited to the account due to a transfer.
The tax office has no right of segregation within the meaning of Section 50 (1) InsO on the credit claim. Such a right would indeed be given with an effective attachment. The tax office could then claim the entire credit balance of € 100 that has arisen after the transfer (the creditor's right of realization in the case of attached claims arises from a reversal to Section 166 (2) InsO, which only covers assigned claims) and the consequences, if any, via the insolvency contestation (in particular Section 131 Paragraph 1 No. 1 InsO). The seizure is, however, ineffective according to § 88 InsO, so that there is no right of separation. The tax office therefore only has the position of an insolvency creditor and can only claim proportional satisfaction. The insolvency administrator can therefore collect the credit claim.
Modification: The attachment order was delivered on January 2nd. The debtor's current account had been canceled several months ago. It was credited on February 10th.
In the modification it is no different. It is not harmful that the attachment order was served before the monthly period of § 88 InsO. It also changes § 309 para. 2 sentence 1 AO nothing. Because the garnishment only takes effect immediately according to this standard if the garnished claim already exists. Otherwise, it will only take effect when the claim arises. Here, the claim against the bank only arose when the debtor's bank received the money. But this was only the case on February 10th and thus within the period of § 88 InsO.
In practice, in the case described, it is advisable to refer the tax office to Section 88 InsO by submitting the opening resolution and to ask the insolvency administrator for written consent to the payment. Since the attachment decision is formally served on the bank, it will often not see itself prompted to pay out simply by pointing out that it is no longer valid due to Section 88 InsO. The repeal of the ruling is also indicated to eliminate the public-law entanglement . If the debtor himself or another creditor has filed for bankruptcy, the alleged separate creditor (in the example the tax office) should also be presented with the bankruptcy petition that is relevant for calculating the deadline.
literature
- Hamburg Commentary on Insolvency Law (Ed .: AOSchmidt), 2006
Individual evidence
- ↑ HmbKomm-Kuleisa, § 88 Rn. 9 mwN
- ^ BGH, judgment of January 19, 2006 , Az. IX ZR 232/04, full text.
- ↑ BFH, judgment of April 12, 2005 , Az.VII R 7/03, full text.
