Consumer bankruptcy proceedings

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The consumer insolvency procedure in Germany is a simplified insolvency procedure for handling the insolvency (insolvency) of a natural person (private person). It is also often referred to as personal bankruptcy proceedings. A simplified insolvency procedure is also carried out if the debtor has carried out an independent economic activity, his financial circumstances are manageable and there are no claims against him from employment relationships.

prehistory

In 1999 the bankruptcy code was replaced by bankruptcy law . Since then, consumer insolvency proceedings have been regulated in the Insolvency Code (InsO) .

A residual debt discharge has existed since the insolvency law came into force on January 1, 1999. For the first time, it enabled overindebted people to be released from the rest of their debts at the end of a period of good conduct. Since the second reform of the Insolvency Code came into force on July 1, 2014, debt relief of this kind has already been possible after three years. These new legal regulations were a reaction to the increasing over-indebtedness of economically inactive people.

meaning

A consumer insolvency procedure is useful for people who are insolvent or who are threatened with insolvency, i.e. who can no longer meet their payment obligations and who want to achieve a financial restart via the consumer insolvency procedure. The number of consumer insolvency proceedings increased roughly tenfold from the beginning of 1999 to 2003 (in 2003 there were around 33,600 proceedings in Germany). The reason for this is not only the growing indebtedness, but above all the possibility of debt discharge , which did not exist under previous law. There was a sharp increase in particular due to the fact that, since the amendment of the Insolvency Code (InsO) in 2001, deferral of the procedural costs has been possible and also completely destitute debtors can go through consumer insolvency proceedings . According to the Federal Statistical Office , a total of 103,289 consumer insolvency proceedings were opened in 2011. The average debt per case in the years 2006 to 2008 was around 60,000 euros. This sum is now around 25,000 euros (as of October 21, 2011).

In addition to lawyers ("suitable person"), offices are also entitled to advise on consumer insolvency proceedings whose suitability is officially recognized ("suitable office"). Which positions are suitable, regulate the implementation laws for the insolvency regulation (AGInsO) of the respective countries i. V. m. Section 305 (1) No. 1 InsO. These advice centers include tax advisors, auditors, sworn accountants and the free debt advice centers of the municipalities and charities and certified consumer centers. If a certificate of eligibility for advisory assistance has previously been approved by the local court , the costs will be borne by the state (judicial fund) and the client may have to make a contribution of € 15.00 including sales tax (before August 1, 2013 € 10.00 including sales tax) in accordance with No. . 2500 VV pay ( § 44 RVG). The lawyers can settle according to given rates. Without a counseling certificate, the client must carry the lawyer's usual sentences himself. It should be noted that because of the subordinate nature of advisory assistance in numerous local court districts, no advisory assistance for consumer insolvency advice is granted, as reference is made to the free debt advice centers.

requirements

The multi-stage consumer insolvency procedure applies to natural persons who do or have not exercised any independent economic activity. In addition , Section 304 (1) InsO applies to former self-employed persons who have fewer than 20 creditors and no liabilities from employment relationships with employees .

Procedure

The process can be broken down into five steps:

Out-of-court settlement attempt

First of all, the debtor asks all creditors to send a current statement of claims as a basis for the debt settlement plan to be drawn up . According to Section 305 (2) InsO, the creditors are obliged to provide information to the debtor at their own expense. The debtor must try to reach an out-of-court settlement ( bankruptcy settlement ) with the creditors by means of a debt settlement plan that includes all liabilities . If an agreement is reached, there is no further procedure.

For this purpose , a debt settlement plan with the aim of debt relief, in which the debtor's services to all creditors are included, must be created, sensibly with the help of a debt counseling center. This plan can contain all the arrangements needed to reach an agreement between the debtor and the creditor (s). If this plan is rejected by at least one creditor or if a creditor continues foreclosure after the debt settlement plan has been announced , the plan is deemed to have failed.

For further proceedings, the debtor needs a certificate stating that the out-of-court settlement has failed. These certificates may only be issued by the bodies recognized in accordance with Section 305 (1) No. 1 InsO; these are publicly recognized debt counseling centers , lawyers , notaries as well as tax advisors and sworn auditors. As soon as there is a certificate from a recognized body about the failure of the out-of-court plan, the application for bankruptcy can be submitted to the bankruptcy court.

Judicial debt settlement process

If the out-of-court settlement attempt fails, the debtor can apply for consumer insolvency proceedings at the bankruptcy court.

With the application to open insolvency proceedings ( § 311 InsO) to be submitted in writing on the official form or immediately after this application, the debtor must submit:

  1. Certificate from a suitable person or body on the failure of the out-of-court settlement with the creditors
  2. Application for discharge of residual debt ( Section 287 InsO) or the declaration that no discharge of residual debt should be applied for
  3. List of assets , overview of assets, list of creditors and a list of claims against him
  4. Debt settlement plan.

Appropriately, the application for deferral of the procedural costs should be made at the same time, if required.

Before the bankruptcy proceedings are opened, the court examines whether the implementation of a judicial debt settlement plan has a chance of success. If this is the case, the plan and the balance sheet are sent to the creditors. They now have four weeks to comment. If the plan is not rejected by at least 50 percent of the creditors (according to number and amount of claims), the court can replace the consent of the rejecting creditors at the request of the indebted person.

Simplified bankruptcy procedure

If the previous efforts have failed, the actual consumer bankruptcy proceedings will be opened. This consumer insolvency procedure is a considerably simplified procedure compared to the regular insolvency procedure. A trustee (insolvency administrator) is employed who creates the insolvency table (creditor, amount of claim and reason for claim). The trustee continues to have the task of realizing the debtor's (attachable) assets . Both in consumer insolvency proceedings and in regular insolvency proceedings, natural persons have the option of applying for discharge of residual debt ( Section 286 InsO). If no (justified) application to refuse the discharge of residual debt is made, the discharge of residual debt will be announced.

Conduct phase

In this fourth section, the debtor assigns the attachable income to the trustee. This distributes it to the creditors after deducting the procedural costs. During the conduct of business phase, the debtor has the obligations of Section 295 InsO: He must exercise or seek appropriate employment, surrender half of the value of inheritances to the trustee, notify the bankruptcy court and the trustee of any change of residence or job, and none Giving creditors a special benefit. The trustee only monitors the debtor's obligations at the request of the creditors (Section 292 (2) InsO). In the event of a breach of these obligations, discharge of residual debt can be denied in accordance with Section 290 InsO. Only the creditors have the right to apply for this (Section 290 InsO).

Final distribution

At the end of the conduct of business phase, the remaining debt is released and the distribution quota for the creditors is calculated. The proceedings are ended with the distribution to the creditors.

The court costs are based on the value of the attachable property and are usually 300 to 500 euros. As a rule, the trustee receives 40% of the insolvency estate (up to 25,000 euros) for the insolvency administration, staggered thereafter, but at least 800 euros ( § 2 or § 13 InsVV) (plus sales tax). In addition, the trustee receives a portion of the payments received from the debtor as remuneration (5% for the first 25,000 euros, furthermore staggered less); however, at least 100 euros per year (plus sales tax).

The costs can be deferred on application in accordance with the regulations for legal aid , the application can be made with the insolvency application. The trustee can also receive an advance payment.

Reform 2014

As the second stage of the insolvency law reform planned and partially already implemented in Germany , the law to shorten the residual debt discharge procedure and to strengthen the rights of creditors came into force on July 19, 2013 . The main part of the reform only applies to procedures filed after June 30, 2014. According to this, those affected can be exempted from their remaining debts after three years instead of the previous six years - provided that they have paid at least part of the outstanding debts. The condition for a so-called residual debt discharge after three years is that you have paid at least 35 percent of the debts as well as the legal costs. However, insolvency administrators saw this as a high hurdle that debtors can only meet in exceptional cases according to previous experience. Originally, a quota of 25 percent was supposed to be sufficient, but the parliamentarians saw the property rights of the creditors too much. If only the procedural costs have been paid, the deadline may be shortened to five years in the future (Section 300 InsO as amended by the proposal of the Legal Committee of the German Bundestag ). Otherwise, as before, those affected will have to forego the attachable part of their income for six years.

See also

literature

  • Björn Schallock: The legal changes in the processing of consumer bankruptcies. A departure from the basic principles of the original legal concept? Publishing house Dr. Kovac, Hamburg 2009, ISBN 978-3-8300-4671-4 .
  • Gerhard Pape, The development of consumer insolvency proceedings in the years 2011/2012 , NJW 2012, 3698 (previous article: … in 2010 , NJW 2011, 3405)
  • Bernhard Schellberg, The Insolvency of Penniless Persons , 2009, ISSN  0949-1767
  • Andreas Schmidt, Hamburg Commentary on Insolvency Law , 3rd edition, May 2009, ZAP-Verlag, ISBN 978-3-89655-434-5 [only as an example for a whole series of commentaries on insolvency law]
  • Werner Sternal: The case law on consumer insolvency and residual debt discharge proceedings in 2012 , New Journal for the Law of Insolvency and Reorganization (NZI) 2013, 417

Web links

Individual evidence

  1. ↑ Federal Statistical Office of Germany - Insolvencies of companies and other debtors
  2. ↑ http://www.brennecke-partner.de/115658/PRIVATINSOLVENZ-%E2%80%93-VERBRAUCHERINSOLVENZ--EINE-EINFUeHRUNG-Teil-2.3.-Aussergerichtliche-Schuldenbereinigung--Verhandlung-mit-den-Glaeubigern
  3. ↑ Remuneration Ordinance under Insolvency Law, Section 14
  4. ↑ Law to shorten the residual debt discharge procedure and to strengthen the rights of creditors of July 15, 2013 ( Federal Law Gazette I p. 2379 )
  5. ↑ FAQ of the consumer advice center NRW on insolvency law
  6. ^ Article by WirtschaftsWoche on the reform of insolvency law
  7. ^ Quote from report in Tagesschau-Online from May 17, 2013 ( Memento from June 7, 2013 in the Internet Archive )