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Air Berlin Abschied wegen Insolvenz - Wirksam gegen Kündigung wehren! #FragMingers

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In such a case a representative or relation of the debtor should be heard. An unincorporated association in this respect shall be deemed equivalent to a corporation. Such request may be filed by the creditors and by the debtor. The insolvency court shall hear the other members of the board of directors, general partners or liquidators. The same shall apply if the grouping of companies continues in this way. The opening of insolvency proceedings shall require the existence of a reason to open such proceedings.

Illiquidity shall be presumed as a rule if the debtor has stopped payments. This shall not apply if the general partners include another company with an individual as general partner. Sections 97, 98 and subs. The debtor shall be entitled to file an immediate complaint against the ordering of the measure.

If the debtor is not an individual the same shall apply to his directors or general partners. Section 98 subs. In such cases the temporary insolvency administrator shall:. Such duties may not exceed the duties under subs. The debtor shall grant the temporary insolvency administrator inspection of his books and business documents.

The debtor must disclose to him any necessary information; sections 97, 98 and subs. It shall be individually served on the debtor, on any person with an obligation to the debtor, and on the temporary insolvency administrator. The same shall apply to obligations under continuing obligations if the temporary insolvency administrator has received the consideration under such contract for the property administered by him.

Such refusal shall be excluded if a sufficient amount of money is advanced, or the costs have been deferred in accordance with Section 4a. The provisions governing the record of debtors under the Code of Civil Procedure shall apply mutatis mutandis; the entry shall however be cancelled after a period of five years. Failing agreement as to whether such person has acted in contravention of his duties and wrongfully in refraining from such request, the burden of proof shall shift to him.

The claim shall be subject to limitation after five years. Sections and subs. Such period of time shall be fixed to extend over not less than two weeks and not more than three months. Details are to be provided of the object of the claimed security interest, the nature and causal origin of the security interest, as well as the secured claim. Any person who by fault omits to provide this information, or provides it late, shall be liable for the consequent damage. Notwithstanding Section 9 remaining unaffected, the notification is to be published in extract form in the Federal Bulletin.

If the debtor is registered in a Commercial Register, in a Register of Cooperatives, in a Register of Partnerships or in a Register of Associations, the registry of the insolvency court shall send to the registering court:. Such entry may also be requested from the Land Register Office by the insolvency administrator. Such deletion may also be requested from the Land Register Office by the administrator. Section 32 shall apply mutatis mutandis to the registration of the opening of insolvency proceedings in the register of ships and the register of ships under construction, as well as in the register of liens on aircraft.

In such a case the parcels of real estate shall be replaced by the ships, ships under construction and aircraft entered in such registers, and the land register by the registering court, respectively. The legal effects of transactions executed by the insolvency administrator or by third parties with respect to him shall remain unaffected by such termination.

The insolvency proceedings shall involve all of the assets owned by the debtor on the date when the proceedings were opened and those acquired by him during the proceedings assets involved in the insolvency proceedings. Sections , a, c, e, f subs. Instead of a creditor, the insolvency administrator shall be entitled to make a request. The first and second sentences shall apply mutatis mutandis in respect of the opening proceedings.

The joint marital property shall not be distributed among the spouses. Insolvency proceedings opened for the assets owned by the other spouse shall leave the joint marital property unaffected. The assets involved in the insolvency proceedings shall serve to satisfy the liquidated claims held by the personal creditors against the debtor on the date when the insolvency proceedings were opened creditors of the insolvency proceedings. Claims to maintenance under family law against the debtor may be filed in insolvency proceedings for the period after the opening of such proceedings only to the extent to which the debtor would be held liable as the heir of the obligated person.

Section shall remain unaffected. Thereby they shall be reduced to the amount corresponding to the full amount of such claim if the statutory rate of interest for the period from the opening of the insolvency proceedings to its maturity is added. Claims subject to a resolutory condition shall be taken into account in the insolvency proceedings as claims not subject to a resolutory condition as long as such condition is not accomplished. A creditor holding claims against several persons for the whole of one single payment may file the full amount in insolvency proceedings against any debtor until he is fully satisfied if he had a claim to such full amount on the date when the insolvency proceedings were opened.

Obligors liable jointly and severally and guarantors may file a claim to be acquired by them in the future against the debtor by satisfaction of the creditor only if the creditor does not file his claim. Non-liquidated claims or contingent claims shall be filed at the value estimated for the date when the insolvency proceedings were opened. Claims expressed in foreign currency or in a mathematical unit shall be converted into German currency according to the exchange value applicable at the time of the opening of the proceedings at the place of payment.

Claims to recurring payments with a definite amount and for a definite period shall be filed with the amount resulting from the addition of all open payments reduced by the discount mentioned at section If the period of such payments is indefinite section 45 first sentence shall apply mutatis mutandis. Anyone entitled to claim the separation of an object from the assets involved in the insolvency proceedings under a right in rem or in personam shall not form part of the creditors of the insolvency proceedings.

Entitlement to separation of such object shall be governed by the legal provisions applying outside the insolvency proceedings. If, prior to opening of the insolvency proceedings by the debtor, or subsequent to the opening, an object for which separation might have been claimed has been sold by the insolvency administrator without entitlement, anyone with a right to separation may claim assignment of the right to its consideration as long as such consideration has not been paid He may claim such consideration from the assets involved in the insolvency proceedings to the extent to which such consideration continues to exist in a distinct form among the assets involved in the insolvency proceedings.

Liens held by lessors of agricultural land shall not be subject to such restriction with respect to the lease payment. Creditors with a right to separate satisfaction shall be deemed creditors of the insolvency proceedings if they also have a personal claim against the debtor. However, they shall be entitled to proportionate satisfaction of their claim from the assets involved in the insolvency proceedings only to the extent that they waive their right to separate satisfaction, or that such separate satisfaction has failed.

The assets involved in the insolvency proceedings shall be used to settle in advance the costs of the insolvency proceedings and the other debts incumbent on the assets involved in the insolvency proceedings. The same shall apply to obligations under a continuing obligation if the temporary insolvency administrator has received the consideration to the credit of the assets administered by him. The first sentence shall apply mutatis mutandis in respect of the claims specified in section subs. Upon termination of his office he shall return such letter to the insolvency court.

During the first meeting of creditors subsequent to the designation of the insolvency administrator the creditors may elect a different person to replace him. The different person shall be elected if in addition to the majority specified in section 76 subs. The court may refuse designation only of a person unqualified to assume such an office. Any creditor of the insolvency proceedings may bring an immediate appeal against a refusal of designation.

The court may require him at any time to give specific information or to report on the progress of the proceedings and on the management. An individual administrative fine may not exceed the sum of fifty thousand Deutsche Mark. The administrator may bring an immediate appeal against the decision. The court shall hear the administrator before taking its decision. He shall ensure the careful action of a proper and diligent insolvency administrator.

If a debt incumbent on the assets involved in the insolvency proceedings created by a legal transaction of the insolvency administrator cannot be fully satisfied from the assets involved in the insolvency proceedings the administrator shall be held liable to damages for the creditor with a claim to the assets involved in the insolvency proceedings. This shall not apply if the administrator in creating such debt could not be aware of the probable insufficiency of the assets involved in the insolvency proceedings for performance.

Such claim shall be subject to limitation at the latest after three years beginning on the date of termination of the insolvency proceedings or when the order discontinuing such proceedings became final. The second sentence shall apply to violation of duties committed under delayed distribution section or under surveillance of implementation of the plan section with the proviso that termination of the insolvency proceedings shall be replaced by the execution of delayed distribution or the termination of surveillance, respectively.

The ordinary rate of such remuneration shall be calculated based on the value of the assets involved in the insolvency proceedings when they are terminated. The determined amounts shall not be published; the public notification should point out that the complete order may be consulted in the registry. The Federal Ministry of Justice shall be empowered to arrange the details of remunerations and refunding of the costs of the insolvency administrator by means of an ordinance.

They shall demand information on the progress of business affairs, have the books and business documents inspected and the monetary transactions and the available cash verified. Section 62 shall apply mutatis mutandis. The time and scope of execution of their office on the part of the members shall be taken into account. For creditors with a right to separate satisfaction to whom the debtor is not personally liable, the claim shall be replaced by the value of such right. Any creditor with a right to separate satisfaction and any non-lower-ranking creditor may bring an immediate appeal against a repeal.

The requesting party may bring an immediate appeal against an order refusing such repeal. The provisions governing the effects of an attachment by way of execution shall remain unaffected. The consideration shall be restituted to the other party to the transfer from the assets involved in the insolvency proceedings if such assets received enrichment by it. If the debtor received performance to settle an obligation after the opening of the insolvency proceedings although such obligation had to be performed to the credit of the assets involved in the insolvency proceedings the performing party shall be discharged of his obligation if he was unaware of the opening of the proceedings at the time of his performance.

If such party performed his obligation prior to publication of the order opening the proceedings he shall be presumed to have been unaware of the opening of the proceedings. The same shall apply to the disclaimer of a continued community. If such joinder is delayed section subs. The creditors of the insolvency proceedings shall only be permitted to enforce their claims under the provisions governing the insolvency proceedings.

This shall not apply to execution under a claim for maintenance or under a claim arising from wilful tort into the amount of emoluments not subject to attachment by other creditors. Prior to its decision the court may issue a restraining order; in particular, it may order a temporary suspension of such execution with or without providing a security and its continuation subject to a security. Rights held by the creditors of the insolvency proceedings for reimbursement of damage suffered jointly by such creditors due to a reduction of the property forming part of the assets involved in the insolvency proceedings before or after the opening of the insolvency proceedings general damage may be claimed only by the insolvency administrator during the insolvency proceedings.

If such rights are sought against the administrator they may be claimed only by another, newly appointed insolvency administrator. If by force of law or on the basis of an agreement a creditor of the insolvency proceedings had a right to set off a claim on the date when the insolvency proceedings were opened such right shall remain unaffected by the proceedings. Sections 41 and 45 shall not apply. Set-off shall be excluded if the claim against which a set-off is to be effected will be unconditioned and mature before it may be set off.

They shall be converted according to the exchange value applicable to this place at the time of receipt of the declaration of set-off. L p. He shall also disclose any facts able to bring about his criminal prosecution for commission of a criminal or administrative offence. He shall forbear any activity contradicting the execution of such duties.

Sections to and of the Code of Civil Procedure shall apply mutatis mutandis. The order imposing detention shall be rescinded ex officio as soon as the preconditions for the ordering of detention no longer exist. Immediate appeal shall be available against the ordering of detention, as well as against refusal of an application for rescission of the order imposing detention if its conditions no longer exist.

Such order shall be issued after the debtor is heard unless this would endanger the purpose of the order due to the particular circumstances of the case. If the debtor is not previously heard, grounds for this must be given in the order and the hearing carried out immediately afterwards. Mail consignments with a content unrelated to the assets involved in the insolvency proceedings shall be forwarded to the debtor immediately.

Any other mail consignments may be inspected by the debtor.

Insolvency Statute (Insolvenzordnung, InsO)

After hearing the administrator the insolvency court shall repeal such order if its conditions have ceased to exist. In addition; sections 97 subs. Section shall apply mutatis mutandis to the general partners of the debtor who are entitled to represent him. Section 21 subs. If the other party requires the administrator to opt for performance or non-performance the administrator shall state his intention to claim performance without negligent delay. If the administrator does not give his statement he may no longer insist on performance. In particular the following shall be regarded as financial performance.

If transactions on financial performances are combined in a framework contract for which agreement has been reached that in the case of violations of the contract it may only be terminated uniformly, the totality of these transactions shall be regarded as a mutual contract in the meaning of sections and The other party may bring such claim only as a creditor of the insolvency proceedings. If the contractual performances due to the parties are severable, and if the other party already had performed part of the services incumbent on it on the date when the insolvency proceedings were opened such other party shall be deemed a creditor of the insolvency proceedings for the amount of its claim to consideration corresponding to the part of the services already performed by it, even if the insolvency administrator claims performance of the services not yet performed.

The same shall apply if the debtor has undertaken additional obligations with respect to the purchase and such obligations have not been met or have not been completely met. This shall not apply if in the period preceding the report meeting a considerable reduction is to be expected in the value of the movable article and the creditor has notified the administrator of this circumstance. This shall also apply in respect of rental and lease contracts concluded by the debtor as landlord or lessor relating to other effects assigned as a security to a third party who had financed their acquisition or production.

If the dwelling of the debtor is the subject-matter of the lease agreement, termination shall be replaced by the right of the insolvency administrator to declare that claims becoming due on expiry of the period specified in the first sentence may not be asserted in the insolvency proceedings. If the administrator terminates under the first sentence, or if he submits the declaration in accordance with the second sentence, the other party may claim damages as a creditor of the insolvency proceedings for premature termination of such contract or in respect of the consequences of the declaration.

If the administrator withdraws from the contract the other party may claim damages as a creditor of the insolvency proceedings for premature termination of the contract. If the insolvency proceedings were opened after the fifteenth day of a month the validity of such assignment shall also be valid in respect of the following month. An assignment under contract shall be deemed equivalent to a transfer effected by way of execution. Sections 95 and 96 Nos. If the insolvency administrator sells immovables or premises let by the debtor, and if the purchaser replaces the debtor as a party of the tenancy or lease, the purchaser may terminate the tenancy or lease with the legal period of notice.

Such notice may be given only for the first date of the legal period of notice. Tenancy or lease contracts concluded by the debtor as tenant or lessee may not be terminated by the other party after the opening of the insolvency proceedings was requested:. If the administrator terminates such contract the other party may claim damages as a creditor of the insolvency proceedings for premature termination of the service contract.

Key Aspects of German Business Law

Section 4 fourth sentence and section 5 of the Dismissals Protection Act shall apply mutatis mutandis. If the insolvency proceedings were opened after the fifteenth day of the month, the validity of such transfer shall extend to the subsequent calendar month. Section 88 shall remain unaffected; Section 89 subs. For this purpose the mandate shall be deemed to continue. The mandatory may claim reimbursement of his expenses incurred for such continuation as a creditor of the assets involved in the insolvency proceedings.

The mandatory shall rank among the creditors of the insolvency proceedings with his reimbursement claims arising from such continuation. If anyone is obligated under a service or work contract with the debtor to manage a business transaction for the latter, section shall apply mutatis mutandis. The provision governing reimbursement claims arising from a continuation of such management contract shall also apply to claims to remuneration.

If a company without legal personality or a partnership limited by shares is liquidated by the opening of insolvency proceedings for the property owned by one partner the managing partner shall rank among the creditors of the assets involved in the insolvency proceedings with his claims arising from the provisional continuation of urgent business transactions.

As long as the managing partner is not at fault in being unaware of the opening of insolvency proceedings he shall rank among the creditors of the insolvency proceedings with his claims arising from the continuation of business transactions. Section 84 subs. Agreements excluding or limiting the application of sections to in advance shall be invalid. In insolvency proceedings opened for the property owned by the entrepreneur, section subs. The provisions contained in the Labour Court Act Arbeitsgerichtsgesetz on decisions by order shall apply mutatis mutandis; the insolvency administrator and the works council shall be the parties involved in the proceedings.

Pursuant to section 61 a subs. A complaint may be made to the Federal Labour Court if this is permitted in the order of the Labour Court; section 72 subs. The appeal is to be filed with the Federal Labour Court with grounds within a month of receipt of the decision of the Labour Court in its final form. However, if no insolvency plan comes into being, no more than one third of the assets involved in the insolvency proceedings available for distribution among the creditors of the insolvency proceedings without such social plan may be used for the settlement of social plan claims.

If the total amount of all social plan claims exceeds such limit each claim shall be reduced on a proportionate basis. No execution into the assets involved in the insolvency proceedings for social plan claims shall be permitted. Upon the establishment of a new social plan such benefits received by a dismissed employee shall be set off against the calculation of the total amount of social plan claims under section subs.

The first sentence shall not apply if the circumstances have changed considerably since the reconciliation of interests was brought into being. The social selection of the employees shall only be examined on the basis of duration of service , age and maintenance obligations. The insolvency administrator, the works council and those designated employees not recognizing the termination of their contracts as justified shall be parties to the proceedings. During proceedings before the Federal Labour Court the provisions contained in the Code of Civil Procedure governing the reimbursement of costs shall apply mutatis mutandis.

This shall not apply if the circumstances have changed considerably since the last oral hearing. The plant buyer shall be a party to the proceedings pursuant to section A person with a close relationship to the debtor on the date of such transaction section shall be presumed to have been aware of the disadvantage to the creditors of the insolvency proceedings.

This shall also apply if such agreement resulted in the liquidation of the silent partnership. During a month lacking such day the time period shall commence on the beginning of the following day. A request refused with final effect shall be taken into account only if such request was refused due to lacking assets involved in the insolvency proceedings. If the registration of a priority notice was requested in order to secure the claim on the change in rights, the first sentence shall apply with the proviso that such request for priority notice shall replace the request to register the transaction.

Contestation shall not be excluded if an executable deed was acquired for the transaction, or if the transaction was performed by way of execution. Payments on the part of the debtor in return for which his property benefitted directly from an equitable consideration may only be contested under the conditions of section subs. The provisions governing the legal consequences of unjust enrichment with the recipient being aware of a lacking legal justification shall apply mutatis mutandis.

This shall not apply if he is aware or must be aware under the circumstances that the gratuitous benefit places the creditors at a disadvantage. Further claims of the recipient of a benefit under a transaction which is subject to contest in respect of restitution of his consideration may be brought by such recipient only as a creditor of the insolvency proceedings. Section of the Code of Civil Procedure shall apply with the proviso that the enforcement judge shall be replaced by the insolvency court.

In order to secure property forming part of the assets involved in the insolvency proceedings the insolvency administrator may have seals applied by the sheriff or any other legally authorised person. The debtor shall attend the establishment of such record if his attendance does not delay the proceedings to their detriment. An expert may be charged with the assessment of objects whose value may be assessed only with particular difficulty. The address of each creditor as well as the reason and the amount of claim shall be indicated. For creditors with a claim to separate satisfaction also the object subject to the claim of separate satisfaction and the amount of their probable nonsatisfaction shall be indicated; section subs.

Sections 98 and subs. With respect to the assets involved in the insolvency proceedings such obligations shall be incumbent on the insolvency administrator. However, the period elapsed prior to the report meeting shall not be taken into account in legal periods provided for the establishment or publication of financial statements. If an auditor was appointed for the financial year prior to the opening of the insolvency proceedings the validity of such appointment shall remain unaffected by the opening of the insolvency proceedings.

If the debtor is a trader, craftsman or farmer, the competent official professional representative body of industry, trade, the craft or of agriculture may also be given the opportunity to express their views at the report meeting. The assembly may modify its decisions at subsequent meetings.

At the request of the debtor and after hearing the administrator the insolvency court shall refuse such close-down of the enterprise if the close-down can be suspended until the report meeting without considerably reducing the assets involved in the insolvency proceedings. A contravention of sections to shall leave the validity of the acts of the insolvency administrator unaffected. The insolvency administrator may initiate with the competent court auctions or sequestrations of immovables forming part of the assets involved in the insolvency proceedings even if such immovables are subject to a right to separate satisfaction.

This shall not apply if the claim has been assigned to the participant in a system in accordance with section 96 subs. Instead of such notification the administrator may allow the creditor to inspect the object. He shall give the creditor the opportunity of pointing out within a week another means of selling the object which would be more beneficial to the creditor. An opportunity to sell shall also be deemed more beneficial if savings are made on expenses. If an object with regard to which the insolvency administrator is entitled to disposition under section is not disposed of by him, the creditor shall be paid the current interest due to him from the assets involved in the insolvency proceedings beginning from the report meeting.

If the insolvency court issued an order under section 21 prohibiting the creditor to dispose of the object before the insolvency proceedings were opened the interest due shall be paid at the latest from the date three months after such order by the court. The remaining amount shall be used without delay to satisfy the creditor with a right to separate satisfaction. Such costs shall be rated as a lump sum of four percent of the proceeds. If the costs actually incurred which were necessary for the disposition were considerably lower or considerably higher, these costs shall be taken as a basis.

If disposition entails the assets involved in the insolvency proceedings incurring turnover tax, this amount shall be charged in addition to the lump sum pursuant to sentence one or the costs actually incurred pursuant to sentence two. Such obligation to recompensing payments shall only exist to the extent to which the loss in value accruing from such use impairs the security of the creditor with a right to separate satisfaction.

Upon expiry of such period of time the administrator shall be entitled to its disposition. Such filing shall be accompanied by copies of the documents evidencing the claim. During the verification meeting the filed claims shall be verified in accordance with their amount and rank. Claims denied by the insolvency administrator, by the debtor or by a creditor of the insolvency proceedings shall be discussed individually.

However, if the insolvency administrator or a creditor of the insolvency proceedings objects to the verification of such claims, or if a claim is filed only after the verification meeting, the insolvency court shall either docket a special verification meeting or order verification in written proceedings, and burden the defaulter with the costs. The first and second sentences shall apply mutatis mutandis to subsequent amendments to filed claims. The creditors of the insolvency proceedings filing claims, the insolvency administrator and the debtor shall receive individual summons to such meeting.

Section 74 subs. An objection on the part of the debtor shall also be entered in the schedule. Determination shall be marked on bills of exchange and any other debt instruments by the registrar of the insolvency court. In the case mentioned at subs. The Local Court where the insolvency proceedings are or were pending shall have exclusive jurisdiction for such action. If the subject matter of the action does not fall under the jurisdiction of the Local Courts, the Regional Court in whose district the insolvency court is located shall have exclusive jurisdiction.

Determination of a claim with its grounds, amount and rank may only be applied for to the extent indicated when it was filed or during the verification meeting. The value of an action to determine a claim whose legal validity was denied by the insolvency administrator or by a creditor of the insolvency proceedings shall depend on the amount to be expected for the claim as a result of distribution of the assets involved in the insolvency proceedings.

If the debtor denied a claim during the verification meeting or in the written proceedings section the creditor may bring an action against the debtor in order to determine such claim. If an action concerning such claim was pending on the date when the insolvency proceedings were opened the creditor may continue such action against the debtor. If an action for the determination of a claim could not be brought under the provisions governing ordinary civil proceedings its determination shall be initiated with any other court having jurisdiction or with the competent administrative agency.

Sections subs. If another court has jurisdiction to determine such claim section shall also apply mutatis mutandis. Sections 51 subs. Contestation in such writs shall be deemed equivalent to denial during the verification meeting if restitutio in integrum is granted. Lower-ranking creditors of the insolvency proceedings shall not be considered for advance distributions. Prior to distribution the insolvency administrator shall establish a record of the claims to be considered in respect of distribution.

The administrator shall publish the total amount of claims and the amount available for distribution from the assets involved in the insolvency proceedings. If proof is not provided in good time, the claim shall not be taken into account in distribution.

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In such a case the share covering the amount of his claim shall be retained in distribution. If the conditions under subs. The share covering the claim shall be retained in distribution. In such a case the share retained under subs. Creditors not taken into account in advance distribution and who meet the conditions under sections and shall in the next distribution be advanced an amount from the remainder of the assets involved in the insolvency proceedings placing them on an equal footing with the other creditors.

The insolvency administrator shall append any amendment to the record required under sections to within three days of the expiry of the limitation period mentioned at section subs. The creditor may bring an immediate appeal against such a decision. The administrator and the creditors of the insolvency proceedings may bring an immediate appeal against such a decision. The period of such appeal shall begin on the day of the deposit of the decision. During such meeting. Funds to be retained in final distribution shall be deposited with suitable agency by the insolvency administrator on account of the parties involved.

If the claims of all creditors of the insolvency proceedings can be satisfied in final distribution the insolvency administrator shall transfer any remaining surplus to the debtor. Section 9 remaining unaffected, the notification shall be published in extract form in the Federal Bulletin. Sections 31 to 33 shall apply mutatis mutandis. A claim with an overruled objection shall be equivalent to a claim not denied. The application for the issuance of an executable copy of the schedule may not be filed until the insolvency proceedings have been terminated.

It may condition its order on the advancement of funds covering the costs of such delayed distribution. Such party may bring an immediate appeal against the decision. The debtor may bring an immediate appeal against the decision.

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Once delayed distribution has been ordered, the insolvency administrator shall distribute the available amount or the proceeds from disposition of the identified object on the basis of the final record. He shall render account of such distribution to the insolvency court. Creditors of the assets involved in the insolvency proceedings of whose claims the insolvency administrator has become aware.

Discontinuation shall not be ordered if sufficient funds are advanced or if the costs are deferred in accordance with section 4a; section 26 subs. The administrator shall no longer be under an obligation to dispose of the assets involved in the insolvency proceedings. The same shall apply if it is likely that the assets will be insufficient to meet the other existing obligations incumbent on the assets involved in the insolvency proceedings on the date of their maturity. Such notification shall be served separately on the creditors of the assets involved in the insolvency proceedings.

As soon as the insolvency administrator has notified lacking assets involved in the insolvency proceedings, execution in respect of an obligation incumbent on the assets involved in the insolvency proceedings in the meaning of section subs. Admissibility of such a request shall require the debtor to show to the satisfaction of the court that there is no reason to open insolvency proceedings.

For creditors whose claims are denied by the debtor or by the insolvency administrator, and in the case of creditors with a right to separate satisfaction, the insolvency court shall decide on its own discretion on the requirement for consent to be given by such creditors or a security to be provided to them. The creditors of the insolvency proceedings may object to such a request within one week after publication, either in writing or for the records of the court registry.

If a creditor objects to such a request, he shall also be heard by the court. The date when such discontinuation will become effective section 9 subs. Sections and shall apply mutatis mutandis. Submission by the debtor may be connected with a request to open insolvency proceedings. The insolvency plan shall consist of a declaratory and a constructive part. It shall be accompanied by the attachments mentioned at sections and The constructive part of the insolvency plan shall determine the transformation of the legal position of the parties involved, by the insolvency plan.

A distinction shall be made between. Such groups shall be adequately separated from each other. The criteria of their separation shall be indicated in the plan. Separate groups may be formed for minor creditors. Any derogating provision shall be ruled out in respect of securities provided to.

For the non-lower ranking creditors the constructive part of the insolvency plan shall indicate the fraction by which their claims will be reduced, detail the period of respite for their claims, announce the securities for them or provide for any other provisions to which they are to be subjected. If rights in objects are to be created, modified, transferred or waived, any legal declarations necessary from the parties involved may be included in the constructive part of the insolvency plan. If registered rights in real estate or in registered rights are involved, such rights shall be detailed in compliance with section 28 of the Land Register Code.

The second sentence shall apply mutatis mutandis to rights registered in the register of ships and the register of ships under construction, or in the register of liens on aircraft. If the debtor is a company without legal personality or a partnership limited by shares, the plan shall be accompanied by a similar statement by the partners with personal liability.

To the extent to which continued disposition and distribution of the assets involved in the insolvency proceedings would impair the implementation of an insolvency plan which has been submitted, the insolvency court at the request of debtor or the insolvency administrator shall order suspension of disposition and distribution. Such meeting shall not be docketed later than one month. Publication shall indicate the availability of the plan and of any comments received for inspection in the registry of the court. A copy of the plan, to be provided at the request of the submitting party, or a summary of its essential contents, shall be sent with the summons.

The discussion and voting meeting may not be docketed prior to the verification meeting. Both meetings, however, may be docketed to coincide. Creditors entitled to separate satisfaction may only vote as creditors of the insolvency proceedings if the debtor is personally liable to them and if they waive their right to separate satisfaction or are not satisfied under such right; as long as their non-satisfaction has not been determined, they shall be taken into account with the probable value of their non-satisfaction. A voting right shall be vested in rights to separate satisfaction denied by neither the insolvency administrator, the creditors entitled to separate satisfaction nor the creditors of the insolvency proceedings.

Sections 41 and 77 subs. The registrar of the court registry shall record in a list the voting rights of creditors resulting from the meeting. The submitting party shall be entitled to modify the contents of individual provisions of the insolvency plan in accordance with the results of the discussion meeting.

A vote may be taken at the same meeting on the modified plan. In this case, the period of time between the discussion meeting and the voting meeting shall not extend beyond one month. If the plan has been modified, such modification shall be specifically indicated. Voting in writing shall not be counted unless received by the court not later than one day prior to the voting meeting; this shall be referred to when the voting slip is forwarded.

The same shall apply if a right is the object of a pledge or a usufruct. The following supplemental provisions shall apply to acceptance of the insolvency plan by the lower-ranking creditors of the insolvency proceedings:. The groups ranking as mentioned at section 39 subs. The consent of the groups ranking behind section 39 subs. If none of the creditors forming a group votes at all, the consent of this group shall be deemed to have been given.

If the insolvency plan provides for the performance of specific contributions or for the implementation of other measures before confirmation the plan may not be confirmed unless such conditions are met. Confirmation shall be refused ex officio if such conditions are not met even after expiry of an adequate period of time fixed by the insolvency court. The creditors and the debtor may bring an immediate appeal against the order confirming the insolvency plan or refusing its confirmation.

If the constructive part is to create, modify, transfer or waive rights in objects or if shares in a company with limited liability are to be transferred, the declarations of intent on the part of the parties involved which are included in the plan shall be deemed to have been given in the form required by law.

The same shall apply to the undertakings included in the plan on which the creation, modification, transfer or waiving of rights in objects or transfer of shares is based. The first and second sentences shall also apply to creditors of the insolvency proceedings who have not filed their claims, and to parties opposing the plan.

Such default to a considerable extent shall be construed only if the debtor has not paid a mature debt although reminded by the creditor in writing with a period of grace of at least two weeks. However, the plan may not derogate from subs. If the court has not decided on the voting right, at the request of the debtor or of the creditor it shall subsequently determine the extent to which the debtor has to provisionally take such claim into account.

Default to a considerable extent in performance of the plan shall be construed only if the debtor omits to pay the arrears although reminded by the creditor in writing with a period of grace of at least two weeks. A claim in respect of which an objection has been raised and overruled shall be deemed equivalent to a claim which has not been denied. Section shall apply mutatis mutandis. The right of unhindered disposition of the assets involved in the insolvency proceedings shall be transferred back to the debtor.

Section 22 subs. The constructive part of the insolvency plan may provide that specific transactions of the debtor or of the takeover company shall require the consent of the insolvency administrator during the period of surveillance in order to become effective. Sections 81 subs. In such a case the maximum amount of such loans shall also be fixed loan ceiling.

It may not exceed the value of property listed in the survey of assets contained in the plan section first sentence. Creditors with other contractual claims created during the period of surveillance shall also have a lower-ranking status in comparison with creditors with entitlements deriving from loans entered into or held open under section Claims created under a continuing obligation prior to surveillance shall also be deemed to constitute such claims for the time after the first date on which the creditor could terminate such contract after surveillance began.


  1. Les Années funestes (French Edition).
  2. German Business Law.
  3. Supplementary Information.

The cost of surveillance shall be borne by the debtor. In the case of section subs.