Insolvenzverschleppung bankruptcy and compulsory
The crisis counseling by professionals and freelancers regularly comes to the question: Do I file for bankruptcy and I do not punishable because Insolvenzverschleppung? corporations under German law, GmbH, AG, KGaA
partnerships without an individual as the general partners, eg GmbH & Co. KG
also may be a requirement for bankruptcy for cooperatives and registered societies. Even for companies under foreign law, for example, the Limited, bankruptcy may be a requirement.
In these cases, the requirement to submit to take very seriously. The deadline of three weeks of the start / knowledge of insolvency maturity is observed. Bankruptcy Legal and tax advice is recommended. Failure to observe may result in civil and criminal liability consequences for the managers and directors, including a piercing the corporate veil in private assets.
However, there is no insolvency requirement for freelancers, sole traders and partnerships with a natural person as general partners. In
even in these cases should be done before a strategic bankruptcy-depth information and advice. The question is then:
bankruptcy or not and if so, to what end. Remediation, continuation or liquidation. insolvency proceedings reasons
The Insolvency Act as amended provides for the following opening arguments in:
The insolvency under § 17 InsO
The debtor is unable to meet the due payment obligations. Applications may be debtors and creditors. Applies to all forms of business, even for individuals.
The threat of insolvency Insolvency Act § 18
Imminent insolvency occurs when the debtor expected to meet its liabilities can not. However, only the debtor is eligible to apply itself exists
indebtedness pursuant to § 19 InsO
indebtedness if the debtor's assets no longer cover the existing liabilities. Applications may be debtors and creditors. Applies to all types of companies, natural persons.
Additional materials required to file for bankruptcy, visit the websites of the GIB for the rehabilitation counseling
http://sanierungsberatung.gib-nrw.de/insolvenzantragspflicht
legal bases
§ 64 GmbHG - insolvency duty
(1) If the company is insolvent, the directors have no undue delay to request no later than three weeks after the onset of insolvency, the insolvency proceedings. This applies, mutatis mutandis, if an indebtedness of the company results.
(2) The directors are committed to the Company for any payments that are made as to the insolvency of the Company or to establish their indebtedness. This does not apply to payments that are consistent even after that date with the diligence of a prudent businessman. To the compensation claim, the provisions in § 43, para 3 and 4 of these Rules.
GmbHG
§ 84 (1) A prison sentence is punishable up to three years or a fine, whoever it
first Managing Director fails to notify the shareholders a loss of half of the share capital, or
second Managing Director contrary to § 64 paragraph 1 or as a liquidator, contrary to § 71 para 4 fails, insolvency or indebtedness to request the opening of insolvency proceedings.
(2) If the offender has acted negligently, the punishment shall be imprisonment of up to one year or a fine.
§ 92 AktG - Board of duties in case of loss, insolvency or bankruptcy
(1) If in preparation of the financial balance sheet or interim balance sheet or is likely to dutiful discretion, that a loss equal to half of the capital stock is given, the Executive Board shall immediately convene the Annual General Meeting and their indicate this.
(2) 1 If the company is insolvent, then the Board without undue delay to request no later than three weeks after the onset of insolvency, the insolvency proceedings. 2 This applies, mutatis mutandis, if an indebtedness of the company results.
(3) 1 After the insolvency has occurred in the company or its indebtedness has shown the board may make any payments. 2 This does not apply to payments made after that date are compatible with the care of a diligent and conscientious manager.
§ 1980 BGB - request to open the probate proceedings
(1) If the heir of the insolvency or indebtedness of the estate to its attention, he must apply immediately to the opening of the probate proceedings. If he violates this duty, it is the creditors for the damage arising therefrom responsible. In determining the adequacy of the estate remain the liabilities and obligations of legacies out of consideration.
(2) The knowledge of the insolvency or indebtedness is based on negligence, the ignorance of the same. Than negligence, it is especially true if the heir, the levy of estate creditors not sought, although he has reason to accept the presence of unknown estate liabilities, the banns is not required if disproportionate the costs to the amount of the estate opposite.
Insolvency Act § 13 - Opening Form
(1) The insolvency proceedings are opened only on written request. Applications can be submitted to creditors and the debtor.
(2) The application may be withdrawn until the insolvency proceedings or the claim is finally dismissed.
(3) The Federal Ministry of Justice is authorized to establish by regulation with approval of the Federal Council on the application by the debtor in a form. Except as established by Theorem 1, a form that the debtor must use this.
Insolvency Act § 17 - Insolvency
(1) General Opening reason is the inability to pay.
(2) The debtor is insolvent if he is not capable of the due to meet payment obligations. Inability to pay is to accept the rule if the debtor has stopped making payments.
Insolvency Act § 18 - Imminent insolvency
(1) If the debtor of the opening of insolvency proceedings, it is also the looming insolvency of the opening base.
(2) The debtor threatens to become insolvent if it is not expected to be in a position to meet the payment obligations existing at the time of maturity.
(3) In case of a legal person or a company without legal personality of the application by all members of the representative body, all personally general partners or all liquidators identified, paragraph 1 shall apply only if the applicant or the representative of the legal person or the company are entitled to.
Insolvency Act § 19 -
indebtedness (1) A legal person is also the opening of indebtedness due.
(2) indebtedness exists if the debtor's assets no longer cover the existing liabilities. The assessment of the assets of the debtor, however, the continuation of the company shall be taken if this is more likely in the circumstances.
(3) If at a company without legal personality not a general partner is a natural person, paragraphs 1 and 2 accordingly. This does not apply if the general partners is a different society in which a general partner is an individual.
Supreme Court case law
defining the insolvency of the Zahlungsstockung
BGH, Judgement of 24 May 2005 - IX ZR 123/04
Insolvency Act § 17, § 64 para 2 GmbHG
a) A mere Zahlungsstockung is likely if the period is not exceeded, the credit-worthy requires a person to borrow the funds needed . For three weeks were necessary but also sufficient.
b) if one within three weeks was not eliminated liquidity gap of the debtor less than 10% of its overdue total debt is regularly ability to pay must be considered unless it is already clear that the gap will soon reach more than 10%.
c) if the debtor's liquidity gap of 10% or more, is regularly assumed to default, unless an exception is not to be expected beyond reasonable probability that the liquidity gap soon completely or almost completely be eliminated and will be expected to creditors with a expectant upon the particular circumstances of the case.
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