-
精品文档，知识共享！
德国破产法
（英）
Insolvency Statute (Insolvenzordnung,
InsO)
Promulgated on 5
October 1994, as last amended on 1 January 2002.
Insolvency Statute -
Contents
Part
One: General Provisions
1. Section 1: Objectives of the
Insolvency Proceedings
2. Section 2:
Jurisdiction of the Local Court as Insolvency
Court
3. Section 3: Local Jurisdiction
4. Section 4: Applicability of the Code
of Civil Procedure (Zivilprozessordnung)
5. Section 4a: Deferment of the Cost of
the Insolvency Proceedings
6. Section
4b: Repayment and Adjustment of the Deferred
Amounts
7. Section 4c: Rescission of
Deferment
8. Section 4d: Legal
recourse
9. Section 5: Principles of
the Insolvency Proceedings
10. Section
6: Immediate Appeal
11. Section 7:
Appeal on Points of Law
12. Section 8:
Service
13. Section 9: Publication
14. Section 10: Hearing of the Debtor
Part Two: Opening of Insolvency
Proceedings. Involved Assets and Parties
Chapter One:
Prerequisites of Opening and Opening Proceedings
1. Section 11:
Admissibility of Insolvency Proceedings
2. Section 12: Corporations under
Public Law
3. Section 13: Request to
Open Insolvency Proceedings
4. Section
14: Request by the Creditor
5. Section
15: Entitlement to Request the Opening of
Insolvency Proceedings for Assets
Owned
by Corporations and for the Assets Owned by
Companies without Legal Personality
6.
Section 16: Reason to Open Insolvency Proceedings
7. Section 17: Illiquidity
8. Section 18: Imminent Illiquidity
9. Section 19: Overindebtedness
10. Section 20: Obligation of
Disclosure During the Opening Proceeding,
Reference to
Discharge of Residual Debt
11. Section 21: Decisions Ordering
Arrestment
12. Section 22: Legal
Status of the Temporary Insolvency Administrator
13. Section 23: Publication of
Restriction on Property Transfers
14.
Section 24: Effects of Restrictions on Property
Transfers
15. Section 25: Repeal of
Measures of Arrestment
16. Section 26:
Refusal for Lacking Assets
17. Section
27: Order Opening the Insolvency Proceedings
18. Section 28: Requirements Incumbent
on the Creditors and Debtors
19.
Section 29: Docketing of Meetings
20.
Section 30: Publication of the Order Opening the
Insolvency Proceedings.
21. Section
31: Commercial Register, Register of Cooperatives
and Register of Associations
22.
Section 32: Land Register
23. Section
33: Ship/Aircraft Register
精品文档，知识共享！
24.
Section 34: Appeal
Chapter Two: Assets
Involved in the Insolvency Proceedings.
Classification of
Creditors
1. Section 35: Definition
of the Assets Involved in the Insolvency
Proceedings
2. Section 36: Objects not
Subject to Attachment
3. Section 37:
Joint Marital Property of a Community
4. Section 38: Definition of the
Creditors of the Insolvency Proceedings
5. Section 39: Lower ranking Creditors
of the Insolvency Proceedings
6.
Section 40: Claims to Maintenance
7.
Section 41: Immature Claims
8. Section
42: Claims Subject to a Resolutory Condition
9. Section 43: Liability Incumbent on
Several Persons
10. Section 44: Rights
of Obligors Liable Jointly and Severally and of
Guarantors
11. Section 45: Conversion
of Claims
12. Section 46: Recurring
Payments
13. Section 47: Right to
Separation
14. Section 48: Right to
Separation Extending to the Consideration Received
as a Substitute
for the Object of
Separation
15. Section 49: Separate
Satisfaction from Immovables
16.
Section 50: Separate Satisfaction of Pledgees
17. Section 51: Other creditors with a
Claim to Separate Satisfaction
18.
Section 52: Elimination of Creditors with a Right
to Separate Satisfaction
19. Section
53: Creditors of the Assets Involved in the
Insolvency Proceedings
20. Section 54:
Costs of the Insolvency Proceedings
21. Section 55: Other Debts incumbent
on the Assets Involved in the Insolvency
Proceedings
Chapter Three: Insolvency
Administrator Bodies Representing the Creditors
1. Section 56:
Designation of an Insolvency Administrator
2. Section 57: Election of a Different
Insolvency Administrator
3. Section
58: Supervision by the Insolvency Court
4. Section 59: Dismissal of the
Insolvency Administrator
5. Section
60: Liability of the Insolvency Administrator
6. Section 61: Nonperformance of Debts
incumbent on the Assets Involved in the Insolvency
Proceedings
7. Section 62:
Period of Limitation
8. Section 63:
Remuneration of the Insolvency Administrator
9. Section 64: Determination by the
Insolvency Court
10. Section 65:
Empowerment to issue an Order
11.
Section 66: Rendering of Accounts
12.
Section 67: Establishment of the Creditors'
Committee
13. Section 68: Election of
Different Members
14. Section 69:
Duties Incumbent on the Creditors' Committee
15. Section 70: Dismissal
16. Section 71: Liability of the
Members of the Creditors' Committee
17. Section 72: Decisions of the
Creditors' Committee
18. Section 73:
Remuneration of the Members of the Creditors'
Committee
19. Section 74: Convening
the Creditors' Assembly
20. Section
75: Request to Convene a Creditors' Assembly
21. Section 76: Decisions of the
Creditors' Assembly
22. Section 77:
Determination of Voting Right
23.
Section 78: Repeal of a Decision taken by the
Creditors' Assembly
24. Section 79:
Information to the Creditors' Assembly
Part Three: Effects of the Opening of
Insolvency Proceedings
Chapter One: General Effects
精品文档，知识共享！
1. Section 80: Right to
Manage and Transfer the Assets Involved in the
Insolvency
Proceedings Vested in the
Insolvency Administrator
2. Section
81: Transfers of Property by the Debtor
3. Section 82: Performance in Favour of
the Debtor
4. Section 83: Decedent's
Estate. Continued Community
5. Section
84: Liquidation of a Company or a Community
6. Section 85: Joinder of Pending
Actions as Plaintiff
7. Section 86:
Joinder of Certain Pending Actions as Defendant
8. Section 87: Claims Held by the
Creditors of the Insolvency Proceedings
9. Section 88: Execution prior to the
Opening of Insolvency Proceedings
10.
Section 89: Prohibition of Execution
11. Section 90: Prohibition of
Execution under Debts incumbent on the Assets
Involved in the
Insolvency Proceedings
12. Section 91: Exclusion of other
Acquisition of Rights
13. Section 92:
General Damage
14. Section 93:
Unlimited Liability of Partners
15.
Section 94: Preservation of the Right to Set Off a
Claim
16. Section 95: Acquisition of
the Right to Set Off a Claim During the
Proceedings
17. Section 96:
Prohibition of Set-Off
18. Section 97:
The Debtor's Obligation to Disclosure and
Cooperation
19. Section 98: Imposition
of the Duties of the Debtor
20.
Section 99: Interception of the Debtor's Mail
21. Section 100: Maintenance Payments
using the Assets Involved in the Insolvency
Proceedings
22. Section
101: Members of the Body Representing the Debtor.
Employees
23. Section 102: Restriction
of a Basic Right
Chapter Two:
Performance of Transactions. Cooperation of the
Works Council
1. Section 103: Option to be Exercised
by the Insolvency Administrator
2.
Section 104: Fixed-date Transactions. Financial
Futures
3. Section 105: Severable
Contracts
4. Section 106: Priority
Notice
5. Section 107: Retention of
Title
6. Section 108: Continuity of
Severable Contracts
7. Section 109:
Debtor's Status as Tenant or Lessee
8.
Section 110: Debtor's Status as Landlord or Lessor
9. Section 111: Sale of Property Let by
the Debtor
10. Section 112:
Prohibition to Terminate Tenancy or Lease
Contracts
11. Section 113: Termination
of a Service contract
12. Section 114:
Emoluments from a Service contract
13.
Section 115: Expiry of Mandates
14.
Section 116: Expiry of Management Contracts
15. Section 117: Expiry of Proxies
16. Section 118: Liquidation of
Companies
17. Section 119: Invalidity
of Agreements Derogating from the Foregoing
Provisions
18. Section 120:
Termination of Plant Agreements
19.
Section 121: Plant Modifications and Conciliatory
Proceeding
20. Section 122: Judicial
Approval of a Plant Modification
21.
Section 123: Scope of the Social Plan
22. Section 124: Social Plan
Established prior to the Opening of Insolvency
Proceedings
23. Section 125:
Reconciliation of Interests and Dismissals
Protection
24. Section 126: Judicial
Orders Deciding on Dismissal Protection
25. Section 127: Action brought by the
Employee
26. Section 128: Sale of
Plant
Chapter Three: Contest of the
Debtor's Transactions in Insolvency Proceedings
精品文档，知识共享！
1. Section 129: Policy
2. Section 130: Congruent Coverage
3. Section 131: Incongruent Coverage
4. Section 132: Transactions
Immediately Disadvantaging the Creditors of the
Insolvency
Proceedings
5.
Section 133: Wilful Disadvantage
6.
Section 134: Gratuitous Benefit
7.
Section 135: Loans Replacing Equity Capital
8. Section 136: Silent Partnership
9. Section 137: Payments on Bills of
Exchange and Cheques
10. Section 138:
Persons with a Close Relationship to the Debtor
11. Section 139: Calculation of Time
Periods prior to the Request to Open Insolvency
Proceedings
12. Section
140: Date of Performance of Transaction
13. Section 141: Executable Deed
14. Section 142: Cash Transactions
15. Section 143: Legal Consequences
16. Section 144: Claims of the Party to
the Contested Transaction
17. Section
145: Transactions Contested and Enforced against
Legal Successors
18. Section 146:
Limitation of the Right to Contest
19.
Section 147: Transactions carried out subsequent
to the Opening of Insolvency
Proceedings
Part Four:
Management and Disposition of the Assets Involved
in the Insolvency
Proceedings
Chapter One:
Arrestment of the Assets Involved in the
Insolvency Proceedings
1. Section 148: Transfer of the Assets
Involved in the Insolvency Proceedings
2. Section 149: Objects of Value
3. Section 150: Sealing
4.
Section 151: Record of the Assets Involved in the
Insolvency Proceedings
5. Section 152:
Record of Creditors
6. Section 153:
Survey of Property
7. Section 154:
Deposit with the Registry of the Insolvency Court
8. Section 155: Accounting under
Commercial and Fiscal Laws
Chapter
Two: Decision on Disposition
1. Section 156: Report
Meeting
2. Section 157: Decision on
the Further Proceedings
3. Section
158: Measures taken prior to the Decision
4. Section 159: Disposition of the
Assets Involved in the Insolvency Proceedings
5. Section 160: Transactions of
Particular Importance
6. Section 161:
Provisional Prohibition of the Transaction
7. Section 162: Sale of Plant to
Persons with Specific Interests
8.
Section 163: Sale of Plant below Value
9. Section 164: Legal Validity of the
Transaction
Chapter Three: Objects
Subject to a Right to Separate Satisfaction
1. Section 165:
Disposition of Immovables
2. Section
166: Disposition of Movables
3.
Section 167: Notification of the Creditor
4. Section 168: Notification of
Envisaged Sale
5. Section 169:
Protection of the Creditor Against Delayed
Disposition
6. Section 170:
Distribution of Proceeds
7. Section
171: Calculation of the Contribution to Costs
精品文档，知识共享！
8.
Section 172: Other Use of Movables
9.
Section 173: Disposition by the Creditor
Part Five: Satisfaction of the
Creditors of the Insolvency Proceedings.
Discontinuation of the proceedings
Chapter One:
Determination of Claims
1. Section 174: Filing of Claims
2. Section 175: Schedule
3.
Section 176: Proceedings of the Verification
Meeting
4. Section 177: Subsequent
Filings
5. Section 178: Prerequisites
and Effects of Determination of Claims
6. Section 179: Denied Claims
7. Section 180: Competence for the
Determination of Claims
8. Section
181: Scope of Determination
9. Section
182: Value of Action
10. Section 183:
Effect of the Decision
11. Section
184: Action to Enforce a Claim Denied by the
Debtor
12. Section 185: Special
Jurisdiction
13. Section 186:
Restitutio in Integrum
Chapter Two:
Distribution
1.
Section 187: Satisfaction of the Creditors of the
Insolvency Proceedings
2. Section 188:
Distribution Record
3. Section 189:
Consideration of Denied Claims
4.
Section 190: Consideration of Creditors with a
Right to Separate Satisfaction
5.
Section 191: Consideration of Conditional Claims
6. Section 192: Subsequent
Consideration
7. Section 193:
Amendments to the Distribution Record
8. Section 194: Objections to the
Distribution Record
9. Section 195:
Determination of a Fraction
10.
Section 196: Final Distribution
11.
Section 197: Final Meeting
12. Section
198: Deposit of Retained Funds
13.
Section 199: Surplus Resulting from Final
Distribution
14. Section 200:
Termination of the Insolvency Proceedings
15. Section 201: Rights of the
Creditors of the Insolvency Proceedings subsequent
to
Termination
16. Section
202: Jurisdiction for Actions to Enable Execution
17. Section 203: Judicial Order to Hold
Delayed Distribution
18. Section 204:
Appeal
19. Section 205: Implementation
of a Delayed Distribution
20. Section
206: Exclusion of the Creditors of the Assets
Involved in the Insolvency
Proceedings
Chapter Three: Discontinuation of
Insolvency Proceedings
1. Section 207: Discontinuation for
Lacking Assets Involved in the Insolvency
Proceedings
2. Section 208:
Notification of Lacking Assets Involved in the
Insolvency Proceedings
3. Section 209:
Satisfaction of the Creditors of the Assets
Involved in the Insolvency
Proceedings
4. Section 210: Prohibition of
Execution
5. Section 211:
Discontinuation upon Notification of Lacking
Assets Involved in the Insolvency
Proceedings
6. Section 212:
Discontinuation for Subsequent Lack of Grounds to
Open Insolvency
Proceedings
7. Section 213: Discontinuation with
the Creditor's Consent
精品文档，知识共享！
8.
Section 214: Discontinuation Procedure
9. Section 215: Publication and Legal
Effects of Discontinuation
10. Section
216: Appeal
Part Six: Insolvency Plan
Chapter One:
Establishment of the Plan
1. Section 217: Policy
2.
Section 218: Submission of the Insolvency Plan
3. Section 219: Breakdown of the Plan
4. Section 220: Declaratory Part
5. Section 221: Constructive Part
6. Section 222: Formation of Groups
7. Section 223: Rights of Creditors
Entitled to Separate Satisfaction
8.
Section 224: Rights of the Creditors of the
Insolvency Proceedings
9. Section 225:
Rights of Lower-ranking Creditors of the
Insolvency Proceedings
10. Section
226: Equal Treatment of Parties Involved
11. Section 227: Debtor's Liability
12. Section 228: Modification of
Conditions under Property Law
13.
Section 229: Survey of Assets. Earnings and
Finance Plan
14. Section 230: Further
Attachments
15. Section 231: Refusal
of the Plan
16. Section 232: Comments
on the Plan
17. Section 233:
Suspension of Disposition and Distribution
18. Section 234: Laying Out of Plan
Chapter Two: Acceptance and
Confirmation of the Plan
1. Section 235: Discussion and Voting
Meeting
2. Section 236: Coincidence
with the Verification Meeting
3.
Section 237: Voting Right of the Creditors of the
Insolvency Proceedings
4. Section 238:
Voting Right of Creditors Entitled to Separate
Satisfaction
5. Section 239: Voting
List
6. Section 240: Modification of
the Plan
7. Section 241: Separate
Voting Meeting
8. Section 242: Voting
in Writing
9. Section 243: Voting by
Groups
10. Section 244: Necessary
Majorities
11. Section 245:
Prohibition to Obstruct
12. Section
246: Consent of Lower-ranking Creditors of the
Insolvency proceedings
13. Section
247: Debtor's Consent
14. Section 248:
Confirmation by the Court
15. Section
249: Conditioned Plan
16. Section 250:
Contravention of procedural Provisions
17. Section 251: Protection of
Minorities
18. Section 252:
Publication of Decision
19. Section
253: Appeal
Chapter Three: Effects of
the Confirmed Plan. Surveillance of Implementation
of the
Plan
1. Section 254: General Effects of the
Plan
2. Section 255: Proviso of
Revival
3. Section 256: Denied Claims.
Remaining Claims
4. Section 257:
Execution under the Plan
5. Section
258: Termination of the Insolvency proceedings
6. Section 259: Effects of Termination
7. Section 260: Surveillance of
Implementation of the Plan
精品文档，知识共享！
8.
Section 261: Tasks and Rights of the Insolvency
Administrator
9. Section 262:
Obligation to Disclosure incumbent on the
Insolvency Administrator
10. Section
263: Transaction requiring Consent
11.
Section 264: Loan Ceiling
12. Section
265: Lower-ranking Status of New Creditors
13. Section 266: Consideration of
Lower-ranking Status
14. Section 267:
Publication of Surveillance
15.
Section 268: Termination of Surveillance
16. Section 269: Costs of Surveillance
Part Seven: Personal
Management
1.
Section 270: Prerequisites
2. Section
271: Subsequent Order
3. Section 272:
Repeal of the Order
4. Section 273:
Publication
5. Section 274: Legal
Status of the Custodian
6. Section
275: Consent of the Custodian
7.
Section 276: Consent of the Creditors' Committee
8. Section 277: Ordering the
Requirement of Consent
9. Section 278:
Funds for the Debtor's Livelihood
10.
Section 279: Mutual Contracts
11.
Section 280: Liability. Contest of the Debtor's
Transactions in Insolvency Proceedings
12. Section 281: Notification of
Creditors
13. Section 282: Disposition
of Securities
14. Section 283:
Satisfaction of the Creditors of the Insolvency
Proceedings
15. Section 284:
Insolvency Plan
16. Section 285:
Lacking Assets Involved in the Insolvency
Proceedings
Part Eight: Discharge of
Residual Debt
1.
Section 286: Policy
2. Section 287:
Debtor's Request
3. Section 288: Right
of Proposal
4. Section 289: Decision
by the Insolvency Court
5. Section
290: Refusal of Discharge of Residual Debt
6. Section 291: Notification of
Discharge of Residual Debt
7. Section
292: Legal Status of Trustee
8.
Section 293: Trustee's Remuneration
9.
Section 294: Equal Treatment of Creditors
10. Section 295: Obligations of the
Debtor
11. Section 296: Contravention
of Obligations
12. Section 297:
Insolvency Offences
13. Section 298:
Coverage of the Trustee's Minimum Remuneration
14. Section 299: Expiry before Date
15. Section 300: Decision on Discharge
of Residual Debt
16. Section 301:
Effect of Discharge of Residual Debt
17. Section 302: Excepted Claims
18. Section 303: Retraction of
Discharge of Residual Debt
Part Nine:
Consumer Insolvency Proceedings and other Minor
Proceedings
Chapter One: Scope of
Application
1.
Section 304: Principle
Chapter Two:
Plan for the Settlement of Debts
1. Section 305: Debtor's
Request to open Insolvency Proceedings
2. Section 305: a Failure of Out-of-
Court Debt Settlement
精品文档，知识共享！
3.
Section 306: Suspension of Proceedings
4. Section 307: Service on the
Creditors
5. Section 308: Acceptance
of the Plan for the Settlement of Debts
6. Section 309: Replacement of Approval
7. Section 310: Costs
Chapter Three: Simplified Insolvency
Proceedings
1.
Section 311: Initiation of the Proceedings
concerning Opening of Insolvency Proceedings
2. Section 312: General Procedural
Simplifications
3. Section 313:
Trustees
4. Section 314: Simplified
Distribution
Part Ten: Special Types
of Insolvency Proceeding
Chapter One: Insolvency Proceeding of a
Decedent's Estate
1. Section 315: Local Jurisdiction
2. Section 316: Admissibility of the
Opening of Insolvency Proceedings
3.
Section 317: Persons Entitled to Request the
Opening of Insolvency Proceedings
4.
Section 318: Entitlement to Make the Request for
the Joint Marital Property
5. Section
319: Request Deadline
6. Section 320:
Reasons for Opening
7. Section 321:
Execution following Succession
8.
Section 322: Contestable Transactions on the Part
of' the Heir
9. Section 323: The
Heir's Expenses
10. Section 324: Debts
incumbent on the Assets Involved in the Insolvency
Proceedings
11. Section 325:
Obligations incumbent on the Estate
12. Section 326: The Heirs' Claims
13. Section 327: Lower-ranking
Obligations
14. Section 328:
Restituted Objects
15. Section 329:
Revisionary Succession
16. Section
330: Purchase of a Decedent's Estate
17. Section 331: Simultaneous
Insolvency of the Heir
Chapter Two:
Insolvency Proceedings relating to the Joint
Marital Property with
Continued
Community
1.
Section 332: Transfer to Insolvency Proceedings
opened for an Estate
Chapter Three:
Insolvency Proceedings relating to the Jointly
Administered Joint
Marital Property of
a Community
1.
Section 333: Right to file a Request. Grounds for
Opening Proceedings
2. Section 334:
Personal Liability of the Spouses
Part
Eleven: Entering into Force
1. Section 335: Referral to
Introductory Act
精品文档，知识共享！
Insolvency Statute (Insolvenzordnung,
InsO)
Part One: General
Provisions
Section 1: Objectives of the Insolvency
Proceedings
The insolvency proceedings
shall serve the purpose of collective satisfaction
of a debtor's
creditors by liquidation
of the debtor's assets and by distribution of the
proceeds, or by
reaching an arrangement
in an insolvency plan, particularly in order to
maintain the enterprise.
Honest debtors
shall be given the opportunity to achieve
discharge of residual debt.
Section 2:
Jurisdiction of the Local Court as Insolvency
Court
(1) The Local Court in whose
district a Regional Court is located shall have
exclusive
jurisdiction for insolvency
proceedings as the insolvency court for the
district of such Regional
Court.
(2) The governments of the L?nder shall
be empowered to designate other or additional
Local
Courts as insolvency courts by
means of a legal ordinance for the purposes of
expedient
furtherance or expedited
conduct of proceedings, and to determine different
districts of
insolvency courts. The
governments of the L?nder may delegate such power
to the judicial
administrations of the
L?nder.
Section 3: Local Jurisdiction
(1) The insolvency court in whose
district the debtor has his usual venue shall have
exclusive
local jurisdiction. If the
centre of the debtor's self-employed business
activity is located
elsewhere, the
insolvency court in whose district such place is
located shall have exclusive
jurisdiction.
(2) If several
courts have jurisdiction, the court first
requested to open the insolvency
proceedings shall exclude any other
jurisdiction.
Section 4: Applicability
of the Code of Civil Procedure
(Zivilprozessordnung)
Unless this
statute provides otherwise the provisions
contained in the Code of Civil Procedure
shall apply to the insolvency
proceedings mutatis mutandis.
Section
4a: Deferment of the Costs of the Insolvency
Proceedings
(1) If the debtor is an
individual and if he has made a request for
discharge of residual debt,
the cost of
the insolvency proceedings shall be deferred on
request until such time as
discharge of
residual debt is awarded, insofar as his assets
are likely not to be sufficient to
cover these costs. Deferment in
accordance with the first sentence shall also
cover the costs
of the proceedings
regarding the plan for the settlement of debts and
the proceedings for
discharge of
residual debt. The debtor shall enclose with the
request a declaration as to
whether one
of the grounds for refusal contained in section
290 subs. 1 Nos. 1 and 3 pertains.
Deferment shall be ruled out if such a
reason pertains.
(2) If the cost of the
proceedings are deferred to the debtor, on request
a lawyer of his choice
shall be
appointed who is willing to represent him if
representation by counsel appears to be
necessary in spite of the duty of
assistance incumbent on the court.
Section 121 subs. 3 to 5 of the Code of
Civil Procedure shall apply mutatis mutandis.
(3) The effect of deferment shall be as
follows:
1. the Federal or Land cash
office may claim
a) court costs in
arrears and those arising,
b) the
claims of the appointed lawyer which transfer to
the cash office against the debtor only
in accordance with the provisions made
by the court;
2. the appointed lawyer
is unable to assert claims for fees against the
debtor. Deferment shall
be effected
separately in respect of each stage of the
proceedings. Until such time as a
decision is made regarding deferment,
the effects specified in the first sentence shall
apply on
an interim basis. Section 4b
subs. 2 shall apply mutatis mutandis.
Section 4b: Repayment and Adjustment of
the Deferred Amounts
(1) If the debtor
is unable once discharge of residual debt has been
awarded to pay the
deferred amount from
his income and his assets, the court may extend
deferment and set the
monthly
instalments to be paid. Section 115 subs. 1 and 2,
as well as section 120 subs. 2, of
精品文档，知识共享！
the
Code of Civil Procedure shall apply mutatis
mutandis.
(2) The court may alter the
ruling regarding the deferment and the monthly
instalments at any
time insofar as any
personal or economic circumstances relevant to the
deferment have
undergone major changes.
The debtor shall be obliged to report to the court
a major change
in these circumstances
without delay. Section 120 subs. 4 first and
second sentences of the
Code of Civil
Procedure shall apply mutatis mutandis. A change
placing the debtor at a
disadvantage
shall be ruled out if four years have passed since
termination of the
proceedings.
Section 4c: Rescission of Deferment
The court may rescind deferment if
1. the debtor intentionally or with
gross negligence has provided incorrect
information
regarding circumstances
relevant to the opening of the insolvency
proceedings or to the
deferment, or has
not submitted a declaration required by the court
regarding his
circumstances;
2. the personal or economic
preconditions for deferment did not apply; in such
a case,
rescission shall be ruled out
if four years have passed since termination of the
proceedings;
3. the debtor is more
than three months in arrears in respect of payment
of a monthly
instalment or of the
payment of another amount and such arrears are his
fault;
4. the debtor is not in
suitable gainful employment and, if he is
unemployed, is not looking for
employment or rejects acceptable
employment; section 296 subs. 2 second and third
sentences shall apply mutatis mutandis;
5. discharge of residual debt is
refused or revoked.
Section 4d: Legal
recourse
(1) Immediate complaint shall
be available to the debtor against refusal to
defer or rescission
of deferment, as
well as against refusal to appoint a lawyer.
(2) If deferment is approved, the state
cash office shall be entitled to file an immediate
complaint. The latter may only be based
on the fact that deferment should have been
rejected
given the personal or economic
circumstances of the debtor.
Section
5: Principles of the Insolvency Proceedings
(1) The insolvency court shall
investigate ex officio all circumstances relevant
to insolvency
proceedings. In
particular, the court may hear witnesses and
experts for this purpose.
(2) The
court may take decisions without an oral hearing.
If an oral hearing takes place,
section
227 subs. 3 first sentence of the Code of Civil
Procedure shall not apply.
(3) Tables
and records may be prepared and processed using
computer equipment.
Section 6:
Immediate Appeal
(1) Decisions of the
insolvency court may be only appealed if this
statute provides for an
immediate
appeal.
(2) The period within which an
immediate appeal has to be brought shall begin on
the day
when the court promulgates its
decision or when a decision is served on the
parties if not
promulgated.
(3) The decision regarding the appeal
shall only be effective when it becomes final.
However,
the court hearing the appeal
may order immediate effectiveness of the decision.
Section 7: Appeal on Points of Law
An appeal on points of law may lie
against the decision on the immediate appeal.
Section 8: Service
(1)
Documents shall be served ex officio. They may be
served by mail. The documents to be
served shall not require certification.
(2) Service shall not be made to
persons with unknown residence. If such persons
have a
representative empowered to
receive any documents to be served, the documents
shall be
served on such representative.
(3) The insolvency court may instruct
the insolvency administrator to serve the
documents.
Section 9: Publication
(1) Publication shall by made by
notification in the gazette or in an electronic
information and
communication system
intended for the court; such publication maybe
restricted to excerpts.
Documents to be
published shall mention the debtor's particulars
with special reference to his
address
and his branch of business. Such publication shall
be deemed to have been effected
精品文档，知识共享！
when
two additional days following the day of
publication have expired.
(2) The
insolvency court may occasion additional and
repeated publications. The Federal
Ministry of Justice shall be empowered
to govern the details of publication in an
electronic
information and
communication system by means of an ordinance
which shall require the
approval of the
Bundesrat. In doing so, in particular deletion
periods shall be provided for, as
shall
regulations ensuring that the publications
1. remain intact, complete and up-to-
date,
2. can be traced to their source
at any time,
3. cannot be copied by
third parties in accordance with the state-of-the-
art of existing
technology.
(3) Publication shall suffice as
evidence of service on all parties to the
proceedings even if any
provision
additionally orders individual service.
Section 10: Hearing of the Debtor
(1) If any provision requires a hearing
of the debtor such hearing may be waived if the
debtor
is resident in a foreign country
and such hearing would unreasonably delay the
proceedings,
or if the debtor's
residence is unknown. In such a case a
representative or relation of the
debtor should be heard.
(2)
If the debtor is not an individual subs. 1 shall
apply mutatis mutandis to the hearing of
persons entitled to represent the
debtor or holding his shares.
Part
Two: Opening of the Insolvency Proceedings.
Involved Assets and Parties.
Chapter One: Prerequisites
of Opening and Opening Proceedings
Section 11: Admissibility of Insolvency
Proceedings
(1) Insolvency proceedings
may be opened for the assets owned by any
individual or
corporation. An
unincorporated association in this respect shall
be deemed equivalent to a
corporation.
(2) Insolvency proceedings may also be
opened for:
1. the assets owned by a
company without legal personality (general
commercial company,
limited
partnership, professional partnership, company
under the Civil Code, shipping
company,
EEIG);
2. under sections 315 to 334,
the estate of a deceased person, the joint marital
property of a
continued community or
the marital property of a community jointly
administered by both
spouses.
(3) After liquidation of a corporation
or a company without legal personality, insolvency
proceedings may be opened as long as
the assets have not been distributed.
Section 12: Corporations under Public
Law
(1) Insolvency proceedings may not
be opened for the assets owned by
1.
the Federation or a Land;
2. a
corporation under public law supervised by a Land
if the law of the Land exempts such
corporation from insolvency
proceedings.
(2) If the law of a Land
exempts the assets owned by a corporation from
insolvency
proceedings under subs. 1
No. 2, the employees of such corporation in case
of its illiquidity or
overindebtedness
may apply to the Land for benefits due to them in
case of insolvency
proceedings opened
under the provisions of the Third Book of the
Social Code (Drittes Buch
Sozialgesetzbuch) governing insolvency
substitute benefits from the Employment Office and
under the provisions of the Act to
Improve Occupational Pensions (Gesetz zur
Verbesserung
der betrieblichen
Altersversorgung) from the institution ensuring
insolvency insurance.
Section 13:
Request to Open Insolvency Proceedings
(1) Insolvency proceedings shall be
opened on request only. Such request may be filed
by the
creditors and by the debtor.
(2) Such request may be withdrawn until
the insolvency court opens the insolvency
proceedings or the request has been
refused with final effect.
Section 14:
Request by the Creditor
(1) A
creditor's request shall be admissible if he has a
legal interest in the opening of the
insolvency proceedings and shows his
claim, and the reason why insolvency proceedings
should be opened, to the satisfaction
of the court.
精品文档，知识共享！
(2) If a request is admissible the
insolvency court shall hear the debtor.
Section 15: Entitlement to Request the
Opening of Insolvency Proceedings for the Assets
Owned by Corporations and for those
Owned by Companies without Legal Personality
(1) As well as the creditors, any
member of the board of directors of a corporation
or, in the
case of a company without
legal personality or of a partnership limited by
shares, any general
partner, and any
liquidator shall be entitled to request the
opening of insolvency proceedings
for
the assets owned by such corporation or company
without legal personality.
(2) If such
request is not filed by all members of the board
of directors, all general partners or
all liquidators, it shall be admissible
if the reason why insolvency proceedings should be
opened is shown to the satisfaction of
the court. The insolvency court shall hear the
other
members of the board of
directors, general partners or liquidators.
(3) If in the case of a company without
legal personality none of the general partners is
an
individual, subs. 1 and 2 shall
apply mutatis mutandis to the members of the board
of
directors, to the general partners
and to the liquidators of the partners empowered
to
represent the company. The same
shall apply if the grouping of companies continues
in this
way.
Section 16:
Reason to Open Insolvency Proceedings
The opening of insolvency proceedings
shall require the existence of a reason to open
such
proceedings.
Section
17: Illiquidity
(1) Illiquidity shall
be the general reason to open insolvency
proceedings.
(2) The debtor shall be
deemed illiquid if he is unable to meet his mature
obligations to pay.
Illiquidity shall
be presumed as a rule if the debtor has stopped
payments.
Section 18: Imminent
Illiquidity
(1) If the debtor requests
the opening of insolvency proceedings imminent
illiquidity shall also
be a reason to
open.
(2) The debtor shall be deemed
to be faced with imminent illiquidity if he is
likely to be unable
to meet his
existing obligations to pay on the date of their
maturity.
(3) If in the case of a
corporation, or of a company without legal
personality, the request is not
filed
by all members of the board of directors, all
general partners or all liquidators, subs. 1
shall only apply if the person or
persons filing the request are empowered to
represent the
company or the
partnership.
Section 19:
Overindebtedness
(1) Overindebtedness
shall be also a reason to open insolvency
proceedings for a
corporation.
(2) Overindebtedness shall exist if the
assets owned by the debtor no longer cover his
existing
obligations to pay. In the
assessment of the debtor's assets, however, the
continuation of the
enterprise shall be
taken as a basis if according to the circumstances
such continuation is
deemed highly
likely.
(3) If none of the general
partners of a company without legal personality is
an individual,
subs. 1 and 2 shall
apply mutatis mutandis. This shall not apply if
the general partners include
another
company with an individual as general partner.
Section 20: Obligation of Disclosure
during the Opening Proceeding, Reference to
Discharge
of Residual Debt
(1) If the request to open insolvency
proceedings is admissible the debtor shall
disclose to the
insolvency court such
information as is necessary for a decision on the
request. Sections 97,
98 and 101 subs.
1 first and second sentences, and subs. 2, shall
apply mutatis mutandis.
(2) If the
debtor is an individual, he shall be informed that
he may obtain discharge of residual
debt in accordance with sections 286 to
303.
Section 21: Decisions Ordering
Arrestment
(1) The insolvency court
shall take all measures appearing necessary in
order to avoid any
detriment to the
financial status of the debtor for the creditors
until the insolvency court
decides on
the request. The debtor shall be entitled to file
an immediate complaint against the
ordering of the measure.
(2) In particular, the court may
1. designate a temporary insolvency
administrator to whom sections 8 subs. 3, as well
as
精品文档，知识共享！
sections 56 and 58 to 66 shall apply
mutatis mutandis;
2. impose a general
prohibition of transfers on the debtor or order
that the debtor's transfers of
property
shall require the consent of the temporary
insolvency administrator in order to
become effective;
3. order
a restriction or temporary restriction on measures
of execution against the debtor
unless
immovables are involved;
4. order a
temporary interception of the debtor's mail in
respect of which sections 99 and 101
subs. 1 first sentence shall apply
mutatis mutandis.
(3) If other
measures prove to be insufficient the court may
sub poena the debtor and have
him
detained after hearing him. If the debtor is not
an individual the same shall apply to his
directors or general partners. Section
98 subs. 3 shall apply mutatis mutandis to the
ordering
of detention.
Section 22: Legal Status of the
Temporary Insolvency Administrator
(1)
If the insolvency court designates a temporary
insolvency administrator and imposes a
general prohibition of transfers on the
debtor the right to manage and transfer the
debtor's
property shall be vested in
the temporary insolvency administrator. In such
cases the
temporary insolvency
administrator shall:
1. see to the
arrestment and preservation of the debtor's
property;
2. continue an enterprise
operated by the debtor until the insolvency court
decides on the
opening of the
insolvency proceedings, unless the insolvency
court consents to a close-down
of such
enterprise in order to avoid a considerable loss
of the debtor's property;
3. verify
whether the debtor's property will cover the costs
of the insolvency proceedings; in
addition, the insolvency court may
charge him as an expert with verification of
whether a
reason to open insolvency
proceedings exists, and which prospects exist for
the continuation
of the debtor's
enterprise.
(2) If the insolvency
court designates a temporary insolvency
administrator without imposing a
general prohibition of transfers on the
debtor the court shall determine the duties of
such
temporary insolvency
administrator. Such duties may not exceed the
duties under subs. 1
second sentence.
(3) The temporary insolvency
administrator shall be entitled to enter the
debtor's business
premises and to
investigate there. 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 101
subs. 1 first and second sentences
and
subs. 2 shall apply mutatis mutandis.
Section 23: Publication of Restriction
on Property Transfers
(1) The decision
ordering any of the restrictions on property
transfers mentioned at section 21
subs.
2 No. 2 and designating a temporary insolvency
administrator shall be published. It shall
be individually served on the debtor,
on any person with an obligation to the debtor,
and on
the temporary insolvency
administrator. At the same time the debtor's
obligors shall be
required to meet
their obligations to the debtor exclusively in
compliance with the order.
(2) 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 a copy of
such order to the registering court.
(3) Sections 32 and 33 shall apply
mutatis mutandis to the registration of
restrictions on
property transfers in
the land register, the register of ships and the
register of ships under
construction,
as well as in the register of liens on aircraft.
Section 24: Effects of Restrictions on
Property Transfers
(1) Sections 81 and
82 shall apply mutatis mutandis to any
contravention of the restrictions on
property transfers mentioned at section
21 subs. 2 No. 2.
(2) If the right to
transfer the debtor's property has been vested in
a temporary insolvency
administrator,
section 85 subs. 1 first sentence and section 86
shall apply mutatis mutandis to
pending
actions.
Section 25: Repeal of
Measures of Arrestment
(1) If the
measures of arrestment are repealed, section 23
shall apply mutatis mutandis to the
publication of the repeal of a
restriction on property transfer.
(2)
If the right to transfer the debtor's property has
been vested in a temporary insolvency
精品文档，知识共享！
administrator he shall settle any costs
incurred using the property administered by him
and
meet any obligation entered into by
him before his designation is repealed. 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.
Section 26:
Refusal for Lacking Assets
(1) The
insolvency court shall refuse a request to open
insolvency proceedings if the debtor's
assets will probably be insufficient to
cover the costs of the proceedings. Such refusal
shall be
excluded if a sufficient
amount of money is advanced, or the costs have
been deferred in
accordance with
Section 4a.
(2) The court shall enter
any debtor for whom a request to open insolvency
proceedings has
been refused for
lacking assets into a record (record of debtors).
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.
(3) Anyone advancing an amount of money
under subs. 1 second sentence may claim
reimbursement of the advanced amount by
any person who, in contravention of the provisions
of company law, as well as in
contravention of his duties and wrongfully, has
not requested
the opening of insolvency
proceedings. 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.
Section
27: Order Opening the Insolvency Proceedings
(1) If insolvency proceedings are
opened the insolvency court shall designate an
insolvency
administrator. Sections 270
and 313 subs. 1 shall remain unaffected.
(2) The order opening the insolvency
proceedings shall specify:
1. the
business name or name and first names, branch of
business or occupation, commercial
establishment or place of abode of the
debtor;
2. the name and address of the
insolvency administrator;
3. the hour
when the insolvency proceedings were opened.
(3) If the order does not specify the
hour when the insolvency proceedings were opened
the
moment of opening shall be deemed
the noon of the day when the order was issued.
Section 28: Requirements Incumbent on
the Creditors and Debtors
(1) In the
order opening the insolvency proceedings the
creditors shall be required to file their
claims in compliance with section 174
with the insolvency administrator within a
definite period
of time. Such period of
time shall be fixed to extend over not less than
two weeks and not
more than three
months.
(2) In the order opening the
insolvency proceedings the creditors shall be
required
immediately to inform the
insolvency administrator which security interests
they claim to have
in personal property
or rights of the debtor. 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.
(3) In the order
opening the insolvency proceedings, those persons
having obligations to the
debtor shall
be required no longer to fulfil these obligations
to the debtor, but to the
administrator.
Section 29:
Docketing of Meetings
(1) In the order
opening the insolvency proceedings the insolvency
court shall docket
meetings for:
1. a creditors' assembly deciding on
the continuation of the insolvency proceedings
based on
the insolvency administrator's
report (report meeting); such meeting shall be
docketed within
six weeks and must not
be docketed more than three months later;
2. a creditors' assembly verifying the
filed claims (verification meeting); the period of
time
between expiry of the period to
file claims and the verification meeting shall
extend over not
less than one week and
not more than two months.
(2) The
meetings may coincide.
Section 30:
Publication of the Order Opening the Insolvency
Proceedings
(1) The registry of the
insolvency court shall publish the order opening
the insolvency
proceedings immediately.
Notwithstanding Section 9 remaining unaffected,
the notification is
精品文档，知识共享！
to be
published in extract form in the Federal Bulletin.
(2) The order shall be served
individually on the debtor's creditors and
obligors and on the
debtor himself.
Section 31: Commercial Register,
Register of Cooperatives, Register of Partnerships
and
Register of Associations
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:
1. a
copy of the order opening the insolvency
proceedings if insolvency proceedings have
been opened;
2. a copy of
the order refusing the opening of insolvency
proceedings if the opening of
insolvency proceedings has been refused
for lacking assets, and if the debtor is a
corporation
or a company without legal
personality liquidated by such refusing order.
Section 32: Land Register
(1) The opening of insolvency
proceedings shall be entered in the Land Register:
1. for any parcel of real estate with
the debtor registered as owner;
2. for
the debtor's registered rights to real estate or
to registered rights if the type of such
rights and the circumstances give rise
to the suspicion that the creditors of the
insolvency
proceedings would be placed
at a disadvantage without such entry.
(2) If the insolvency court is aware of
such parcels of real estate or such rights it
shall request
entry by the Land
Register ex officio. Such entry may also be
requested from the Land
Register Office
by the insolvency administrator.
(3)
If the administrator releases or sells a parcel of
real estate or a right for which the opening
of the insolvency proceedings has been
registered, the insolvency court shall request the
Land Register to delete such entry.
Such deletion may also be requested from the Land
Register Office by the administrator.
Section 33: Ship/Aircraft Register
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.
Section 34: Appeal
(1) If
the opening of the insolvency proceedings is
refused the requesting party, and the
debtor if the request was refused under
section 26, may bring an immediate appeal.
(2) If the insolvency proceedings are
opened the debtor may bring an immediate appeal.
(3) As soon as a decision repealing the
order opening insolvency proceedings has become
effective such termination of the
insolvency proceedings shall be published. Section
200 subs.
2 second and third sentences
shall apply mutatis mutandis. The legal effects of
transactions
executed by the insolvency
administrator or by third parties with respect to
him shall remain
unaffected by such
termination.
Chapter Two: Assets
Involved in the Insolvency Proceedings.
Classification of
Creditors
Section 35: Definition of
the Assets Involved in the Insolvency Proceedings
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).
Section 36:
Objects not Subject to Attachment
(1)
Objects not subject to execution shall not form
part of the assets involved in the insolvency
proceedings. Sections 850, 850a, 850c,
850e, 850f subs. 1 and sections 850g to 850i of
the
Code of Civil Procedure shall apply
mutatis mutandis.
(2) However, the
assets involved in the insolvency proceedings
shall involve
1. the debtor's business
records; any legal obligation governing storage of
such documents
shall remain unaffected;
2. objects not subject to execution
under section 811 subs. 1 Nos. 4 and 9 of the Code
of Civil
精品文档，知识共享！
Procedure.
(3) Objects
forming part of the debtor's usual household and
used in his household shall not
form
part of the assets involved in the insolvency
proceedings if their disposition would
obviously yield not more than proceeds
largely disproportionate to their value.
(4) The insolvency court shall have
jurisdiction in respect of rulings as to whether
an object is
subject to coercive
execution in accordance with the provisions
specified in subs. 1 second
sentence.
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.
Section 37: Joint Marital Property of a
Community
(1) If the joint marital
property of a community is administered by one
spouse only and
insolvency proceedings
are opened for the assets owned by such spouse,
the assets involved
in the insolvency
proceedings shall involve the joint marital
property. 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.
(2) If the joint marital property is
administered by both spouses insolvency
proceedings
opened for the assets owned
by any spouse shall leave the joint marital
property unaffected.
(3) Subs. 1 shall
apply to a continued community with the proviso
that the spouse
administering the joint
marital property alone shall be replaced by the
surviving spouse, and
the late spouse
by his descendants, respectively.
Section 38: Definition of the Creditors
of the Insolvency proceedings
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).
Section
39: Lower-ranking Creditors of the Insolvency
proceedings
(1) The following claims
shall be satisfied ranking below the other claims
of creditors of the
insolvency
proceedings in the order given below, and
according to the proportion of their
amounts if ranking with equal status:
1. the interest accruing on the claims
of the creditors of the insolvency proceedings
from the
opening of the insolvency
proceedings;
2. the costs incurred by
individual creditors of the insolvency proceedings
due to their
participation in the
proceedings;
3. fines, administrative
penalties, coercive penalty payments, as well as
such incidental legal
consequences of a
criminal or administrative offence binding the
debtor to pay money;
4. claims to the
debtor's gratuitous performance of a
consideration;
5. claims to the refund
of loans borrowed from a partner and replacing
equity capital, or claims
having the
same rank as these.
(2) Claims which
the creditor and the debtor agreed to be non-
privileged in insolvency
proceedings
shall be satisfied after the claims mentioned at
subs. 1 if the agreement does not
provide otherwise.
(3)
Interest accruing on the claims of non-privileged
creditors of the insolvency proceedings,
and the costs incurred by such
creditors due to their participation in the
proceedings shall rank
with equal
status as the claims of such creditors.
Section 40: Claims to Maintenance
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 100
shall remain
unaffected.
Section 41: Immature Claims
(1) Immature claims shall be deemed to
be mature.
(2) If such claims do not
bear interest they shall be discounted at the
statutory rate of interest.
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.
Section 42: Claims Subject to a
Resolutory Condition
Claims subject to
a resolutory condition shall be taken into account
in the insolvency
精品文档，知识共享！
proceedings as claims not subject to a
resolutory condition as long as such condition is
not
accomplished.
Section
43: Liability Incumbent on Several Persons
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.
Section 44:
Rights of Obligors Liable Jointly and Severally
and of Guarantors
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.
Section 45:
Conversion of Claims
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.
Section 46: Recurring
Payments
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 41. If the period of such payments is
indefinite section 45 first sentence
shall apply mutatis mutandis.
Section 47: Right to Separation
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.
Section 48: Right to
Separation Extending to the Consideration received
as a Substitute for
the Object of
Separation
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.
Section 49: Separate Satisfaction from
Immovables
Creditors with a right to
satisfaction from objects subject to execution
into immovables
(immovable objects)
shall be entitled to separate satisfaction under
the provisions of the Act
Governing
Auctions and Sequestrations of Immovables (Gesetz
ü
ber die
Zwangsversteigerung
und die Zwangsverwaltung).
Section 50:
Separate Satisfaction of Pledgees
(1)
Creditors holding a contractual pledge, a pledge
acquired by attachment or a legal lien in
an object forming part of the assets
involved in the insolvency proceedings shall be
entitled to
separate satisfaction in
respect of main claim, interest and costs from the
pledged object
under sections 166 to
173.
(2) The landlord's or lessor's
legal lien may not be claimed in insolvency
proceedings for rent
or lease payments
covering an earlier period than the last twelve
months foregoing the
opening of the
insolvency proceedings, and for any damages to be
paid due to the termination
of such
lease by the insolvency administrator. Liens held
by lessors of agricultural land shall
not be subject to such restriction with
respect to the lease payment.
Section
51: Other Creditors with a Claim to Separate
Satisfaction
The following creditors
shall be deemed equal with those specified under
section 50:
1. creditors to whom the
debtor has assigned a movable item or a right in
order to secure a
claim;
2.
creditors with a right to withhold an object in
consideration of their improvement of the
object as far as their claim from such
improvement does not exceed the still existing
improvement;
精品文档，知识共享！
3.
creditors with a right to withhold an object under
the provisions of the Commercial Code;
4. the Federation, the L?nder, the
communes and commune associations with regard to
objects subject to custom duties and
tax under legal provisions to secure the payment
of
public dues.
Section 52:
Elimination of Creditors with a Right to Separate
Satisfaction
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.
Section 53: Creditors of the Assets
Involved in the Insolvency Proceedings
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.
Section 54: Costs of the Insolvency
Proceedings
The following shall be
deemed costs of the insolvency proceedings:
1. the court fees in respect of the
insolvency proceedings;
2. the
remuneration earned and the expenses incurred by
the temporary insolvency
administrator,
by the insolvency administrator and by the members
of the creditors'
committee.
Section 55: Other Debts incumbent on
the Assets Involved in the Insolvency Proceedings
(1) The following debts shall be deemed
as further debts incumbent on the assets involved
in
the insolvency proceedings:
1. debts created by activities of the
insolvency administrator or in another way by the
administration, disposition and
distribution of the assets involved in the
insolvency
proceedings without
belonging to the costs of the insolvency
proceedings;
2. obligations under
mutual contracts claimed to be performed to the
credit of the assets
involved in the
insolvency proceedings or to be settled after the
opening of the insolvency
proceedings;
3. obligations due to restitution for
unjust enrichment of the assets involved in the
insolvency
proceedings.
(2)
Obligations created by a temporary insolvency
administrator in whom the right to transfer
the debtor's property was vested after
the opening of the insolvency proceedings shall be
deemed as 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.
(3) If in
accordance with subs. 2 reasoned wage claims in
accordance with section 187 of the
Third Book of the Social Code transfer
to the Federal Employment Service, the Federal
Service may only claim these as a
creditor of the insolvency proceedings. The first
sentence
shall apply mutatis mutandis
in respect of the claims specified in section 208
subs. 1 of the
Third Book of the Social
Code to the extent that these are upheld against
the debtor.
Chapter Three: Insolvency
Administrator Bodies Representing the
Creditors
Section 56: Designation of the
Insolvency Administrator
(1) The
insolvency court shall designate an independent
individual suited to the case at hand,
particularly experienced in business
affairs and independent of the creditors and of
the debtor
as insolvency administrator.
(2) The insolvency administrator shall
receive a letter documenting his designation. Upon
termination of his office he shall
return such letter to the insolvency court.
Section 57: Election of a Different
Insolvency Administrator
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. 2,
the majority of the
voting creditors
has also voted for him. 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.
精品文档，知识共享！
Section 58: Supervision by the
Insolvency Court
(1) The insolvency
administrator shall be subject to supervision by
the insolvency court. 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.
(2) If the insolvency administrator
does not fulfil his duties, subsequent to a
warning the court
may impose an
administrative fine on him. An individual
administrative fine may not exceed
the
sum of fifty thousand Deutsche Mark. The
administrator may bring an immediate appeal
against the decision.
(3)
Subs. 2 shall apply mutatis mutandis to the
implementation of the obligation to return
assets in respect of an administrator
who has been dismissed.
Section 59:
Dismissal of the Insolvency Administrator
(1) The insolvency court may dismiss
the insolvency administrator for an important
reason.
Such dismissal may be ordered
ex officio or at the request of the administrator,
of the
creditors' committee or of the
creditors' assembly. The court shall hear the
administrator
before taking its
decision.
(2) The administrator may
bring an immediate appeal against his dismissal.
The administrator
himself, the
creditors' committee or any creditor of the
insolvency proceedings, if the creditors'
assembly requested the administrator's
dismissal, may bring an immediate appeal against
an
order refusing the dismissal of the
administrator.
Section 60: Liability
of the Insolvency Administrator
(1) The
insolvency administrator shall be held liable to
damages for all parties to the
proceedings if he wrongfully violates
the duties incumbent on him under this statute. He
shall
ensure the careful action of a
proper and diligent insolvency administrator.
(2) If for the fulfilment of the duties
incumbent on him as administrator he has to employ
any
not obviously unqualified wage-
earners of the debtor within the scope of their
former activities,
pursuant to section
278 of the Civil Code, the administrator shall not
be responsible for errors
made by these
persons, but shall be responsible for supervising
them, as well as for decisions
of
particular importance.
Section 61:
Nonperformance of Debts incumbent on the Assets
Involved in the Insolvency
Proceedings
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.
Section 62: Period of Limitation
A claim to damages arising from a
breach of duty on the part of the insolvency
administrator
shall be subject to
limitation after three years beginning on the date
when the injured party
becomes aware of
the damage and of the circumstances' warranting
the administrator's
liability to
damages. 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 203) or under
surveillance of
implementation of the
plan (section 260) with the proviso that
termination of the insolvency
proceedings shall be replaced by the
execution of delayed distribution or the
termination of
surveillance,
respectively.
Section 63: Remuneration
of the Insolvency Administrator
(1) The
insolvency administrator shall be entitled to
remuneration in consideration of execution
of his office, and to reimbursement of
his adequate expenses. 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 scope and complexity of the
administrator's
execution of his office
shall be taken into account by derogating from the
ordinary rate.
(2) If the costs of the
proceedings have been deferred in accordance with
section 4a, the
insolvency
administrator shall have a claim against the state
cash office in respect of his
payment
and his expenses insofar as the insolvency assets
are insufficient therefor.
精品文档，知识共享！
Section 64: Determination by the
Insolvency Court
(1) The insolvency
court shall determine by means of an order the
insolvency administrator's
remuneration
and the expenses to be reimbursed to him.
(2) Such order shall be published and
individually served on the administrator, the
debtor and
the members of the creditors
committee if appointed. The determined amounts
shall not be
published; the public
notification should point out that the complete
order may be consulted in
the registry.
(3) The administrator, the debtor and
any creditor of the insolvency proceedings may
bring an
immediate appeal against the
order. Section 567 subs. 2 of the Code of Civil
Procedure shall
apply accordingly.
Section 65: Empowerment to Issue an
Order
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.
Section 66: Rendering of
Accounts
(1) Upon expiry of his office
the insolvency administrator shall render account
to an assembly
of creditors.
(2) Prior to such assembly of creditors
the insolvency court shall verify the
administrator's
rendering of accounts.
The court shall lay out the administrator's final
account with supporting
documents, with
a remark indicating verification of the account
and with any comments of the
creditors'
committee if appointed to the parties' inspection;
it may set a deadline for the
creditors' committee to make a
statement. The period between the laying out of
such
documents and the date of the
creditors' assembly shall extend for at least one
week.
(3) The creditors' assembly may
charge the administrator with intermediate
accounts to be
rendered on certain
dates during the proceedings. Subs. 1 and 2 shall
apply mutatis mutandis.
Section 67:
Establishment of the Creditors' Committee
(1) Prior to the first creditors'
assembly the insolvency court may establish a
creditors'
committee.
(2)
Such creditors' committee shall represent the
creditors with a right to separate satisfaction,
the creditors of the insolvency
proceedings holding the maximum claims and the
small sum
creditors. The committee
shall include a representative of the debtor's
employees if the latter
are involved as
creditors of the insolvency proceedings holding
considerable claims.
(3) Persons not
holding the status of creditors may also be
appointed as members of the
creditors'
committee.
Section 68: Election of
Different Members
(1) The creditors'
assembly shall decide on the establishment of a
creditors' committee. If the
insolvency
court has already established a creditors'
committee the creditors' assembly shall
decide whether it is to be maintained
in office.
(2) It may vote the
dismissal of members designated by the insolvency
court or the
appointment of additional
members to the creditors' committee.
Section 69: Duties Incumbent on the
Creditors' Committee
The members of the
creditors' committee shall support and monitor the
insolvency
administrator's execution of
his office. 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 70: Dismissal
The insolvency court may dismiss a
member of the creditors' committee for an
important
reason. Such dismissal may be
ordered ex officio or at the request of such
member of the
creditors' committee or
of the creditors' assembly. The court shall hear
such member of the
creditors' committee
prior to issuing such order; he may bring an
immediate appeal against
the decision.
Section 71: Liability of the Members of
the Creditors' Committee
The members of
the creditors' committee shall be held liable to
damages for the creditors with
a right
to separate satisfaction and for the creditors of
the insolvency proceedings if they
wrongfully violate the duties incumbent
on them under this statute. Section 62 shall apply
mutatis mutandis.
Section
72: Decisions of the Creditors' Committee
精品文档，知识共享！
A
decision of the creditors' committee shall be
valid if the majority of members attended the
meeting voting on such decision and
backed such decision with the majority of voting
members.
Section 73:
Remuneration of the Members of the Creditors'
Committee
(1) The members of the
creditors' committee shall be entitled to
remuneration in consideration
of
execution of their offices and to reimbursement of
their adequate expenses. The time and
scope of execution of their office on
the part of the members shall be taken into
account.
(2) Section 63 subs. 2, as
well as sections 64 and 65 shall apply mutatis
mutandis.
Section 74: Convening the
Creditors' Assembly
(1) The creditors'
assembly shall be convened by the insolvency
court. All creditors with a
right to
separate satisfaction, all creditors of the
insolvency proceedings, the insolvency
administrator, the members of the
Creditors' Assembly and the debtor shall be
entitled to
attend such assembly.
(2) The time, place and agenda of the
creditors' assembly shall be published. Such
publication
may be waived if a
creditors' assembly adjourns its transactions.
Section 75: Request to Convene a
Creditors' Assembly
(1) A creditors'
assembly shall be convened if requested by
1. the insolvency administrator;
2. the creditors' committee;
3. at least five creditors with a right
to separate satisfaction or non-lower-ranking
creditors of
the insolvency proceedings
whose rights to separate satisfaction and claims
together are
assessed by the insolvency
court to represent one fifth of the sum resulting
from the value of
all rights to
separate satisfaction and of the claims of all
non-lower-ranking creditors of the
insolvency proceedings.
4.
one or more creditors with a right to separate
satisfaction or non-lower-ranking creditors of
the insolvency proceedings whose rights
to separate satisfaction and claims together are
assessed by the insolvency court to
represent two fifths of the sum mentioned at No.
3.
(2) The period between reception of
such request and the date of the creditors'
assembly shall
extend no longer than
three weeks.
(3) If the insolvency
court refuses an order convening a creditors'
assembly the requesting
party may bring
an immediate appeal.
Section 76:
Decisions of the Creditors' Assembly
(1) The creditors' assembly shall be
presided by the insolvency court.
(2)
A decision of the creditors' assembly shall be
valid if the sum of the claims held by backing
creditors exceeds one half of the sum
of claims held by the creditors with voting
rights. 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.
Section 77: Determination of Voting
Right
(1) A voting right shall be
vested in claims filed by the creditor and not
disputed by the
insolvency
administrator or by a creditor with a voting
right. lower-ranking creditors shall have
no voting rights.
(2)
Creditors with disputed claims shall have a voting
right to the extent to which the
administrator and the attending
creditors with a right to vote have agreed such
vote during the
creditors' assembly. If
the parties 'cannot reach an agreement the
decision of the insolvency
court shall
prevail. The insolvency court may modify its
decision at the request of the
administrator or of a creditor
attending the creditors' assembly.
(3)
Subs. 2 shall apply mutatis mutandis to
1. creditors holding claims subject to
a condition precedent;
2. creditors
with a right to separate satisfaction.
Section 78: Repeal of a Decision taken
by the Creditors' Assembly
(1) If a
decision taken by the creditors' assembly is
against the common interest of the
creditors of the insolvency
proceedings, the insolvency court shall repeal
such decision at the
request of a
creditor with a right to separate satisfaction, of
a non-lower-ranking creditor of the
insolvency proceedings or of the
insolvency administrator if such request is
brought during the
creditors' assembly.
(2) Such repeal of a decision shall be
published. Any creditor with a right to separate
精品文档，知识共享！
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.
Section 79:
Information to the Creditors' Assembly
The creditors' assembly may require the
insolvency administrator to give specific
information
and a report on the
progress of the proceedings and on the management.
If a creditors'
committee has not been
appointed the creditors' assembly may have the
administrator's
monetary transactions
and the available cash verified.
Part
Three: Effects of the Opening of Insolvency
Proceedings
Chapter One:
General Effects
Section 80: Right to Manage and
Transfer the Assets Involved in the Insolvency
Proceedings
Vested in the Insolvency
Administrator
(1) Upon the opening of
the insolvency proceedings the debtor's right to
manage and transfer
the assets involved
in the insolvency proceedings shall be vested in
the insolvency
administrator.
(2) An existing prohibition of
transfers imposed on the debtor and purporting to
protect only
certain persons (section
135 and 136 of the Civil Code) shall have no
binding effect on the
proceedings. The
provisions governing the effects of an attachment
by way of execution shall
remain
unaffected.
Section 81: Transfers of
Property by the Debtor
(1) If the
debtor after the opening of the insolvency
proceedings transfers an object forming
part of the assets involved in the
insolvency proceedings such transfer shall be
legally invalid.
Sections 892 and 893
of the Civil Code, 16 and 17 of the Act Governing
Rights in Registered
Ships and Ships
under Construction (Gesetz ü
ber Rechte
an eingetragenen Schiffen und
Schiffsbauwerken) and 16 and 17 of the
Act Governing Rights in Aircraft (Gesetz
ü
ber Rechte
an
Luftfahrzeugen) 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.
(2) With respect to an assignment of
future claims to emoluments due to the debtor
under a
service contract or to
recurring emoluments replacing them subs. 1 shall
also apply to the
extent to which such
assignment covers any emoluments to be received by
the debtor
subsequent to termination of
the insolvency proceedings. The debtor's right to
assign such
emoluments to a trustee for
the purpose of collective satisfaction of the
creditors of the
insolvency proceedings
shall remain unaffected.
(3) If the
debtor transferred an object forming part of the
assets involved in the insolvency
proceedings on the day when the
insolvency proceedings were opened such transfer
shall be
presumed to have been effected
after the opening of the insolvency proceedings.
Section 82: Performance in Favour of
the Debtor
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.
Section 83: Decedent's
Estate. Continued Community
(1) If the
debtor prior to the opening of the insolvency
proceedings succeeded or during the
insolvency proceedings succeeds to a
decedent's estate or to a legacy only the debtor
shall
be entitled to accept or disclaim
such estate or legacy. The same shall apply to the
disclaimer
of a continued community.
(2) If the debtor is a limited heir the
insolvency administrator may not transfer any
object
forming part of the decedent's
estate if such transfer would be invalid under
section 2115 of
the Civil Code with
respect to the revisionary heir if the revisionary
heir succeeds to the
decedent's estate.
Section 84: Liquidation of a Company or
a Community
(1) If a community, another
ownership in common or a company without legal
personality
精品文档，知识共享！
exists between the debtor and third
parties, any distribution or other liquidation
shall be
effected outside the
insolvency proceedings. The third parties may
claim separate satisfaction
from the
debtor's share determined under such distribution
or liquidation to settle any claims
arising from the community, ownership
in common or company without legal personality.
(2) An agreement excluding the right to
liquidate a community for ever, for a limited
period or
for a period of notice to be
given shall have no binding effect upon the
insolvency
proceedings. The same shall
apply to a clause in the decedent's will with a
similar content and
binding on the
community of heirs, and to a similar agreement
among the members of a
community of
heirs.
Section 85: Joinder of Pending
Actions as Plaintiff
(1) Actions
affecting the property forming part of the assets
involved in the insolvency
proceedings
and pending for the debtor as plaintiff on the
date when the insolvency
proceedings
are opened may be joined by the insolvency
administrator with their existing
status. If such joinder is delayed
section 239 subs. 2 to 4 of the Code of Civil
Procedure shall
apply mutatis mutandis.
(2) If the administrator refuses such
joinder the debtor and the defendant may continue
the
action.
Section 86:
Joinder of Certain Pending Actions as Defendant
(1) Actions pending against the debtor
as defendant on the date when the insolvency
proceedings are opened may be joined by
the insolvency administrator or continued by the
plaintiff if they cover:
1.
the separation of an object from the assets
involved in the insolvency proceedings;
2. separate satisfaction, or;
3. a debt incumbent on the assets
involved in the insolvency proceedings.
(2) If the administrator acknowledges
such claim immediately the plaintiff may claim
reimbursement of the costs incurred for
such action only as a creditor of the insolvency
proceedings.
Section 87:
Claims held by the Creditors of the Insolvency
Proceedings
The creditors of the
insolvency proceedings shall only be permitted to
enforce their claims
under the
provisions governing the insolvency proceedings.
Section 88: Execution prior to the
Opening of Insolvency Proceedings
If a
creditor of the insolvency proceedings during the
last month preceding the request to open
the insolvency proceedings or after
such request acquired by virtue of execution a
security
attaching the debtor's
property forming part of the assets involved in
the insolvency
proceedings such
security shall become legally invalid when the
insolvency proceedings are
opened.
Section 89: Prohibition of Execution
(1) Individual creditors of the
insolvency proceedings may not execute into the
assets involved
in the insolvency
proceedings or into the debtor's other property
during the insolvency
proceedings.
(2) Even creditors without the status
of creditors of the insolvency proceedings may not
execute during the proceedings into
future claims to emoluments due to the debtor
under a
service contract or into
recurring emoluments replacing them. 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.
(3) The insolvency
court shall decide on any relief to be granted
against execution under subs.
1 or 2.
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.
Section 90: Prohibition of Execution
under Debts incumbent on the Assets Involved in
the
Insolvency Proceeding
(1) Execution in respect of debts
incumbent on the assets involved in the insolvency
proceedings not caused by a transaction
of the administrator shall be inadmissible for a
period
of six months from the opening
of the insolvency proceedings.
(2) The
following liabilities shall not be considered as
such debts incumbent on the assets
involved in the insolvency proceedings:
精品文档，知识共享！
1.
obligations under a mutual contract for whose
performance the administrator opted;
2. obligations under a continuing
obligation for the period after the first date
when the
administrator might have
terminated such contract;
3.
obligations under a continuing obligation insofar
as the administrator receives its
consideration for the assets involved
in the insolvency proceedings.
Section
91: Exclusion of other Acquisition of Rights
(1) After the opening of the insolvency
proceedings rights in objects forming part of the
assets
involved in the insolvency
proceedings cannot be acquired with legal effect
even if such
acquisition of rights is
not based on the debtor's transfer or effected by
way of execution.
(2) Sections 878,
892 and 893 of the Civil Code, 3 subs. 3, 16 and
17 of the Act Governing
Rights in
Registered Ships and Ships Under Construction, 5
subs. 3, 16 and 17 of the Act
Governing
Rights in Aircraft and 20 subs. 3 of the Maritime
Distribution Statute
(Schiffahrtsrechtliche
Verteilungsordnung) shall remain unaffected.
Section 92: General Damage
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.
Section 93: Personal
Liability of Partners
If insolvency
proceedings have been opened for the assets owned
by a company without legal
personality
or by a partnership limited by shares, only the
insolvency administrator may claim
a
partner's personal liability to the company's
debts during the insolvency proceedings.
Section 94: Preservation of the Right
to Set Off a Claim
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.
Section 95: Acquisition
of the Right to Set Off a Claim During the
Proceedings
(1) If on the date when the
insolvency proceedings were opened one or more of
the claims to
be set off against each
other were conditioned, were immature or did not
cover similar types
of performance such
set-off may not be effected before its conditions
are met. 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.
(2)
Set-off shall not be excluded by the claims being
expressed in different currencies or
mathematical units if these currencies
or mathematical units are freely exchangeable at
the
place of payment of the claim
against which a set-off is to be effected. They
shall be
converted according to the
exchange value applicable to this place at the
time of receipt of the
declaration of
set-off.
Section 96: Prohibition of
Set-Off
(1) Set-off shall be prohibited
if
1. a creditor of the insolvency
proceedings has become an obligor to the credit of
the assets
involved in the insolvency
proceedings only after the opening of the
insolvency proceedings;
2. a creditor
of the insolvency proceedings acquired his claim
from another creditor only after
the
opening of the insolvency proceedings;
3. a creditor of the insolvency
proceedings acquired the opportunity to set off
his claim by a
transaction subject to
contest;
4. a creditor with a claim to
be satisfied from the debtor's free property is an
obligor to the
credit of the assets
involved in the insolvency proceedings.
(2) Subs. 1 as well as section 95 subs.
1 third sentence shall not oppose the set-off of
claims
and benefits from transfer,
payment or assignment agreements introduced into a
system
serving to implement such
agreements where set-off is effected at the latest
on the day of
opening of the insolvency
proceedings. A system within the meaning of the
first sentence shall
be a written
agreement in accordance with Article 2 (a) of
Directive 98/26/EC of the European
Parliament and of the Council of 19 May
1998 on settlement finality in payment and
securities
settlement systems (OJ EC
No. L 166 p. 45) reported to the Commission of the
European
精品文档，知识共享！
Communities by the Deutsche Bundesbank
or the competent authority of another member
state or contracting party of the
Agreement on the European Economic Area. Systems
from
third states shall be deemed
equivalent to the systems named in the second
sentence where
they largely meet the
preconditions stipulated in Article 2 (a) of
Directive 98/26/EC.
Section 97: The
Debtor's Obligation to Disclosure and Cooperation
(1) The debtor shall disclose any
circumstances relating to the insolvency
proceedings to the
insolvency court,
the insolvency administrator, the creditors'
committee and, if so ordered by
the
insolvency court, to the creditors' assembly. He
shall also disclose any facts able to bring
about his criminal prosecution for
commission of a criminal or administrative
offence.
However, any fact disclosed by
the debtor under his obligation in accordance with
the first
sentence may not be used
against the debtor without his consent in trial or
proceedings under
the Administrative
Offences Act (Gesetz ü
ber
Ordnungswidrigkeiten) brought against the
debtor or a relation mentioned at
section 52 subs. 1 of the Code of Criminal
Procedure.
(2) The debtor shall
support the administrator in the latter's
execution of his duties.
(3) Under an
order issued by the court the debtor shall be
obligated to be available at any time
to meet his obligations to disclosure
and cooperation. He shall forbear any activity
contradicting the execution of such
duties.
Section 98: Imposition of the
Duties of the Debtor
(1) If necessary
to provide truthful statements the insolvency
court shall order the debtor's
affidavit for the records that he
disclosed any demanded facts truly, correctly and
completely.
Sections 478 to 480 and 483
of the Code of Civil Procedure shall apply mutatis
mutandis.
(2) The court may sub poena
the debtor and detain him after hearing him
1. if the debtor refuses to give
information or to provide an assurance under oath
or to support
the fulfilment of the
duties of the insolvency administrator,
2. if the debtor attempts to evade the
execution of his obligations to disclosure and
cooperation, in particular by preparing
his flight, or
3. if such subpoena and
detainment are necessary to avoid the debtor's
activities
contradicting the execution
of his obligations to disclosure and cooperation,
in particular to
secure the assets
involved in the insolvency proceedings.
(3) Sections 904 to 910 and 913 of the
Code of Civil Procedure shall apply mutatis
mutandis
in respect of the ordering of
detention. 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.
Section 99: Interception of the
Debtor's Mail
(1) If such measure seems
necessary in order to investigate or prevent the
debtor's
transactions disadvantaging
the creditors the insolvency court at the
insolvency
administrator's request or
ex officio shall, by order and giving grounds,
order redirection to the
administrator
of certain or all mail consignments destined for
the debtor. 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.
(2) The administrator
shall be entitled to open any mail consignment
redirected to him. 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.
(3) The debtor may bring
an immediate appeal against the ordering of
interception of his mail.
After hearing
the administrator the insolvency court shall
repeal such order if its conditions
have ceased to exist.
Section 100: Maintenance Payments using
the Assets Involved in the Insolvency Proceedings
(1) The creditors' assembly shall
determine whether and to what extent the debtor
and his
family are to be granted
maintenance using the assets involved in the
insolvency proceedings.
(2) Until the
creditors' assembly reaches a decision, with the
agreement of the creditors'
committee
if appointed, the insolvency administrator may
grant necessary maintenance to the
debtor. In the same way it shall be
possible to grant maintenance to the debtor's
minor
unmarried children, spouse,
former spouse and the other parent of his child
regarding a claim
精品文档，知识共享！
under sections 1615 1 and 1615 n of the
Civil Code.
Section 101: Members of
the Body Representing the Debtor. Employees
(1) If the debtor is not an individual,
sections 97 to 99 shall apply mutatis mutandis to
the
members of the body representing or
supervising the debtor, as well as to his general
partners
who are entitled to represent
him. In addition; sections 97 subs. 1 and 98 shall
apply mutatis
mutandis to persons who
left a position mentioned in the first sentence no
earlier than two
years before the
opening of the insolvency proceedings was
requested. Section 100 shall
apply
mutatis mutandis to the general partners of the
debtor who are entitled to represent him.
(2) Section 97 subs. 1 first sentence
shall apply mutatis mutandis to the debtor's
employees
and previous employees,
insofar as these did not leave earlier than two
years prior to the
opening of the
insolvency proceedings was requested.
Section 102: Restriction of a Basic
Right
Section 21 subs. 2 No. 4, as well
as sections 99 and 101 subs. 1 first sentence
shall authorize
a limitation of the
basic right of privacy (letters,
telecommunications) (Article 10 of the Basic
Law).
Chapter Two:
Performance of Transactions. Cooperation of the
Works Council
Section 103: Option to be Exercised by
the Insolvency Administrator
(1) If a
mutual contract was not (or not completely)
performed by the debtor and its other party
at the date when the insolvency
proceedings were opened the insolvency
administrator may
perform such contract
replacing the debtor and claim the other party's
consideration.
(2) If the
administrator refuses to perform such contract the
other party shall be entitled to its
claims for non-performance only as a
creditor of the insolvency proceedings. 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.
Section 104: Fixed-date Transactions
Financial Futures
(1) If the delivery
of goods with a market or stock exchange price was
agreed to take place
exactly on a
definitely fixed date or within a definitely fixed
period, and if such date or expiry of
the period occurs after the insolvency
proceedings were opened performance may not be
claimed, but only claims for non-
performance.
(2) If financial
performance with a market or stock exchange price
was agreed to take place at
a fixed
date or within a fixed period, and if such date or
expiry of the period occurs after the
insolvency proceedings were opened
performance may not be claimed, but only claims
for
non-performance. In particular the
following shall be regarded as financial
performance
1. the delivery of
precious metals,
2. the delivery of
securities or comparable rights if it is not
intended to obtain a participation in
a
company in order to establish a long-term
association,
3. performances in specie
which have to be effected in foreign currency or
in a mathematical
unit,
4.
performances in specie the amount of which is
indirectly or directly determined by the
exchange rate of a foreign currency or
mathematical unit, by the interest rate prevailing
for
claims or by the price of other
goods or services,
5. options and
other rights to deliveries or performances in
specie in the meaning of Nos. 1 to
4.
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 103 and 104.
(3) Such claim
for non-performance shall cover the balance
between the agreed price and the
market
or stock exchange price prevailing at the place of
performance on the second workday
after
the insolvency proceedings were opened for a
contract with the agreed period of
performance. The other party may bring
such claim only as a creditor of the insolvency
proceedings.
Section 105:
Severable Contracts
If the contractual
performances due to the parties are severable, and
if the other party already
精品文档，知识共享！
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
other party shall not be entitled to claim
restitution for
non-performance of its
claim to the consideration of the part of services
transferred to the
debtor's assets
before the insolvency proceedings were opened.
Section 106: Priority Notice
(1) If a priority notice was entered
into the Land Register in order to secure a claim
to grant or
terminate a right in the
debtor's real estate or in a right registered for
the debtor, or in order to
secure a
claim to modify the contents or priority of such
right the creditor may claim
satisfaction of his claim from the
assets involved in the insolvency proceedings. The
same
shall apply if the debtor
undertook additional obligations with respect to
the creditor and 'such
obligations have
not been met or have not been completely met.
(2) Subs. 1 shall apply mutatis
mutandis to a priority notice entered into the
register of ships
and the register of
ships under construction, or into the register of
liens on aircraft.
Section 107:
Retention of Title
(1) If the debtor,
before the insolvency proceedings were opened, has
sold a movable article
while retaining
title and transferring its possession to the
purchaser the purchaser may claim
performance of the sales contract. 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.
(2) If the debtor, before the
insolvency proceedings were opened, has purchased
a movable
article in which the has
seller retained title and whose possession was
transferred to the
debtor by the
seller, the insolvency administrator, required by
the seller to opt for performance
or
non-performance, need not submit his declaration
pursuant to section 103 subs. 2 until
without negligent delay after the
report meeting. 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.
Section 108: Continuity
of Continuing Obligations
(1) Contracts
concluded by the debtor for the lease and tenancy
of immovables or premises
and for
services to be performed for the debtor shall
continue to exist, but to the credit of the
assets involved in the insolvency
proceedings. 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.
(2) Claims arising before
the insolvency proceedings were opened may be
brought by the
other party only as a
creditor of the insolvency proceedings.
Section 109: Debtor's Status as Tenant
or Lessee
(1) A contract for the
tenancy or lease of immovables or premises
concluded by the debtor as
tenant or
lessee may be terminated by the insolvency
administrator with the legal period of
notice irrespective of any agreed
period of notice. 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.
(2) If the debtor
had not yet entered into possession of the
immovables or premises when the
insolvency proceedings were opened the
administrator and the other party may withdraw
from
such contract. 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.
At the other party's request each party shall
state within two weeks whether it
intends to withdraw from the contract;
if any of the parties does not give their
statement they
shall lose the right to
withdraw.
Section 110: Debtor's Status
as Landlord or Lessor
(1) If the debtor
as landlord or lessor of immovables or premises
assigned his future claim to
精品文档，知识共享！
tenancy or lease fees to a third party
before the insolvency proceedings were opened the
validity of such assignment shall be
limited to tenancy or lease fees to be received
for the
current month of the opening of
the insolvency proceedings. 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.
(2) In
particular, collection of the tenancy or lease
fees shall be deemed an assignment for the
purpose of subs. 1. An assignment under
contract shall be deemed equivalent to a transfer
effected by way of execution.
(3) The tenant or lessee may set off
any claim entitling him against the debtor against
the
claim to tenancy or lease fees
covering the period mentioned at subs. 1. Sections
95 and 96
Nos. 2 to 4 shall remain
unaffected.
Section 111: Sale of
Property Let by the Debtor
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. Section 57c of the Act on Forced
Sale and Sequestration
(Gesetz
ü
ber die Zwangsversteigerung und die
Zwangsverwaltung) shall apply mutatis
mutandis.
Section 112:
Prohibition to Terminate Tenancy or Lease
Contracts
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:
1. because of default
in the payment of tenancy or lease fees arising
before the opening of the
insolvency
proceedings was requested,
2. because
of degradation of the debtor's financial
situation.
Section 113: Termination of
a Service Contract
(1) A contract
entitling the debtor to services may be terminated
by the insolvency
administrator and by
the other party irrespective of any agreed
duration of such contract or
agreed
exclusion of the right to routine termination. If
no shorter period has been agreed, the
period of notice shall be three months
to month's end. 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.
(2) If an
employee intends to invoke the invalidity of the
insolvency administrator's termination
of his contract he shall even bring an
action with the Labour Court within three weeks of
his
reception of such termination if he
invokes the invalidity of such termination for
other reasons
than those given at
section 1 subs. 2 and 3 of the Dismissals
Protection Act
(Kü
ndigungsschutzgesetz).
Section 4 fourth sentence and section 5 of the
Dismissals
Protection Act shall apply
mutatis mutandis.
Section 114:
Emoluments from a Service Contract
(1)
If the debtor prior to the opening of the
insolvency proceedings assigned or pledged a
future claim to emoluments due to him
under a service contract or to recurring
emoluments
replacing them, the validity
of such assignment or pledge shall be limited to
the emoluments to
be received by the
debtor prior to the end of two years following the
end of the current
calendar month on
the date of the opening of the proceedings.
(2) Against the claim to emoluments
covering the period mentioned at subs. 1 the
obligated
person may set off any claim
entitling; him against the debtor. Sections 95 and
96 Nos. 2 to 4
shall remain unaffected.
(3) If future emoluments were
transferred prior to the opening of the insolvency
proceedings
by way of execution, the
validity of such transfer shall be limited to
emoluments to be received
by the debtor
for the current calendar month on the date of the
opening of the proceedings. 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. 2 second
sentence shall apply mutatis mutandis.
Section 115: Expiry of Mandates
(1) Any mandate ordered by the debtor
referring to the property forming part of the
assets
involved in the insolvency
proceedings shall expire upon the opening of the
insolvency
proceedings.
精品文档，知识共享！
(2) If
suspension of such mandate would cause a risk the
mandatory shall continue to perform
the
mandated transaction until the insolvency
administrator is able to otherwise take care of
such transaction himself. 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.
(3) As
long as the mandatory is not at fault in being
unaware of the opening of insolvency
proceedings he shall benefit from the
presumption that the mandate continues. The
mandatory shall rank among the
creditors of the insolvency proceedings with his
reimbursement claims arising from such
continuation.
Section 116: Expiry of
Management Contracts
If anyone is
obligated under a service or work contract with
the debtor to manage a business
transaction for the latter, section 115
shall apply mutatis mutandis. The provision
governing
reimbursement claims arising
from a continuation of such management contract
shall also
apply to claims to
remuneration.
Section 117: Expiry of
Proxies
(1) A proxy granted by the
debtor with respect to the property forming part
of the assets
involved in the
insolvency proceedings shall expire upon the
opening of the insolvency
proceedings.
(2) As far as a mandate or a management
contract is deemed to continue under section 115
subs. 2 the related authority shall
also be deemed to continue.
(3) As
long as the authorised person is not at fault in
being unaware of the opening of
insolvency proceedings he shall not be
held liable under section 179 of the Civil Code.
Section 118: Liquidation of Companies
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. 1 shall
remain
unaffected.
Section
119: Invalidity of Agreements Derogating from the
Foregoing Provisions
Agreements
excluding or limiting the application of sections
103 to 118 in advance shall be
invalid.
Section 120: Termination of Plant
Agreements
(1) If a plant agreement
provides for benefits incumbent on the assets
involved in the
insolvency proceedings
the insolvency administrator shall consult the
works council about
agreement on a
reduction of such benefits. Such plant agreement
may be terminated by
giving three
months' notice even if a longer period of notice
has been agreed.
(2) The right to
terminate a plant agreement for an important
reason without a period of notice
shall
remain unaffected.
Section 121: Plant
Modifications and Conciliatory Proceeding
In insolvency proceedings opened for
the property owned by the entrepreneur, section
112
subs. 2 first sentence of the
Industrial Constitution Act
(Betriebsverfassungsgesetz) shall 1
apply with the proviso that the
conciliatory proceedings shall only be preceded by
an attempt
on the part of the president
of the Land Employment Office to settle the matter
if both the
insolvency administrator
and the works council request such an attempt.
Section 122: Judicial Approval of a
Plant Modification
(1) If a plant
modification is envisaged, and if the insolvency
administrator and the works
council
cannot reach an agreement pursuant to section 112
of the Industrial Constitution Act
on
reconciliation of interests within three weeks
from the beginning of negotiations or written
request to begin negotiations although
the administrator has provided comprehensive
information in good time to the works
council, the administrator may request a decision
on the
part of the Labour Court
approving such plant modification without prior
proceedings under
section 112 subs. 2
of the Industrial Constitution Act. Section 113
subs. 3 of the Industrial
Constitution
Act shall not be applied in this respect. The
administrator's right to bring about a
精品文档，知识共享！
reconciliation of interests pursuant to
section 125 or to file a request for a court
decision
pursuant to section 126 shall
remain unaffected.
(2) The Court shall
approve such plant modification if the economic
condition of the enterprise,
also
taking into account the social concerns of the
employees, warrants the execution of such
plant modification, without previous
proceedings in accordance with section 112 subs. 2
of the
Industrial Constitution Act. 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. 3 to 6
of the Labour Court Act, the application is to be
dealt with as a
matter of priority.
(3) No complaint to the Regional Labour
Court may be brought against the court order. A
complaint may be made to the Federal
Labour Court if this is permitted in the order of
the
Labour Court; section 72 subs. 2
and 3 of the Labour Court Act shall apply mutatis
mutandis.
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.
Section 123: Scope of the Social Plan
(1) A social plan established
subsequent to opening of insolvency proceedings
may provide
for a total amount of up to
two and one half month's wages (section 10 subs. 3
of the
Dismissals Protection Act) of
the dismissed employees to recompense for or to
attenuate their
economic disadvantages
under the envisaged plant modification.
(2) The obligations under such social
plan are obligations incumbent on the assets
involved in
the insolvency proceedings.
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.
(3) As soon as
adequate cash funds are available in the assets
involved in the insolvency
proceedings
the insolvency administrator shall make advance
payments on social plan claims
with the
consent of the insolvency court. No execution into
the assets involved in the
insolvency
proceedings for social plan claims shall be
permitted.
Section 124: Social Plan
Established prior to the Opening of Insolvency
Proceedings
(1) A social plan
established prior to the opening of insolvency
proceedings, but not earlier
than three
months before the opening of insolvency
proceedings was requested, may be
revoked by both the insolvency
administrator and the works council.
(2) If such social plan is revoked the
employees entitled to claims under the social plan
may
be taken into account when a social
plan is established during the insolvency
proceedings.
(3) Benefits received by
an employee on his claim under a revoked social
plan before the
opening of insolvency
proceedings may not be claimed to be restituted
due to the revocation.
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
123 subs. 1 up to two and a half
months' wages.
Section 125:
Reconciliation of Interests and Dismissals
Protection
(1) If a plant modification
is envisaged (section 111 of the Industrial
Constitution Act) and if the
insolvency
administrator and the works council reach an
agreement on reconciliation of
interests in which the employees who
are to receive notice are listed by name, section
1 of the
Dismissals protection Act
shall be applied, subject to the following
provisos:
1. it shall be presumed that
termination of the employment of the employees who
are listed by
name depends on urgent
requirements of the plant which stand in the way
of further
employment on this site or
of further employment under unchanged working
conditions;
2. the social selection of
the employees shall only be examined on the basis
of duration of
service, age and
maintenance obligations, and in this respect only
for gross errors; it shall not
be
regarded as grossly in error if a balanced
personnel structure is maintained or created.
The first sentence shall not apply if
the circumstances have changed considerably since
the
reconciliation of interests was
brought into being.
(2) Reconciliation
of interests pursuant to subs. 1 shall replace the
statement of the works
council pursuant
to section 17 subs. 3 second sentence of the
Dismissals Protection Act.
精品文档，知识共享！
Section 126: Judicial Orders Deciding
on Dismissal Protection
(1) If the
plant did not elect a works council or if for
other reasons reconciliation of interests
pursuant to section 125 is not achieved
within three weeks of opening of the negotiations
or
written request to open
negotiations, in spite of the fact that the
administrator provided
comprehensive
information in good time to the works council, the
insolvency administrator
may request a
decision on the part of the Labour Court to the
effect that termination of
contracts
covering certain employees designated in his
request is conditioned by urgent
operational requirements and justified
under social aspects. The social selection of the
employees shall only be examined on the
basis of duration of service , age and maintenance
obligations.
(2) The
provisions of the Labour Court Act governing
decisions by order shall apply mutatis
mutandis. 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. Section 122 subs. 2
third sentence and subs. 3 shall apply mutatis
mutandis.
(3) Section 12 a subs. 1
first and second sentences of the Labour Court Act
shall apply
mutatis mutandis to the
costs incurred by the parties concerned during the
first stage of
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.
Section 127: Action brought by an
Employee
(1) If the insolvency
administrator gives notice to an employee listed
in the application
pursuant to section
126 subs. 1, and if the employee files an action
to determine that
employment has not
been terminated by dismissal, or that the change
in the working
conditions is socially
unjustified, the legally binding decision in
proceedings pursuant to
section 126
shall be binding on the parties. This shall not
apply if the circumstances have
changed
considerably since the last oral hearing.
(2) If the employee has already filed
an action prior to the decision taken in
proceedings
pursuant to section 126
becoming legally binding, at the request of the
administrator the
proceedings on the
action shall be suspended until this time.
Section 128: Sale of plant
(1) Application of sections 125 to 127
shall not be excluded by the plant modification on
which
the reconciliation of interests
or application for determination is based not
being carried out
until subsequent to
sale of plant. The plant buyer shall be a party to
the proceedings pursuant
to section
126.
(2) In the case of a transfer of
plant, the presumption in accordance with section
125 subs. 1
first sentence No. 1 or the
court decision pursuant to section 126 subs. 1
first sentence shall
also imply that
termination of employment does not occur because
of the transfer of plant.
Chapter
Three: Contest of Transactions in Insolvency
Proceedings
Section 129: Policy
(1)
Transactions made prior to the opening of
insolvency proceedings and disadvantaging the
creditors of the insolvency proceedings
may be contested by the insolvency administrator
under sections 130 to 146.
(2) An omission shall be deemed
equivalent to an active transaction.
Section 130: Congruent Coverage
(1) A transaction granting or
facilitating a creditor of the insolvency
proceedings with a security
or
satisfaction may be contested
1. if it
was made during the last three months prior to the
request to open insolvency
proceedings,
if the debtor was illiquid on the date of the
transaction, and if the creditor was
aware of his illiquidity on this date,
or
2. if it was made after the request
to open insolvency proceedings, and if the
creditor was
aware of the debtor's
illiquidity on the date of the transaction, or of
the request to open
insolvency
proceedings.
(2) Awareness of
circumstances pointing directly to illiquidity or
to a request to open
insolvency
proceedings shall be considered equivalent to
awareness of illiquidity or of the
request to open insolvency proceedings.
精品文档，知识共享！
(3) A
person with a close relationship to the debtor
existing on the date of such transaction
(section 138) shall be presumed to have
been aware of the debtor's illiquidity or of the
request
to open insolvency proceedings.
Section 131: Incongruent Coverage
(1) A transaction granting or
facilitating a creditor of the insolvency
proceedings a security or
satisfaction
without his entitlement to such security or
satisfaction, or to the kind or date of
such security or satisfaction, may be
contested if such transaction was made
1. during the last month prior to the
request to open insolvency proceedings or after
such
request;
2. within the
second or third month prior to the request to open
insolvency proceedings, and
the debtor
was illiquid on the date of the transaction;
3. within the second or third month
prior to the request to open insolvency
proceedings, and
the creditor was aware
of the disadvantage to the creditors of the
insolvency proceedings
arising from
such transaction on its date.
(2) For
application of subs. 1 No. 3, awareness of
circumstances pointing directly to the
disadvantage shall be considered
equivalent to awareness of the disadvantage to the
creditors of the insolvency
proceedings. A person with a close relationship to
the debtor on the
date of such
transaction (section 138) shall be presumed to
have been aware of the
disadvantage to
the creditors of the insolvency proceedings.
Section 132: Transactions Constituting
a Direct Disadvantage to the Creditors of the
Insolvency Proceedings
(1)
Legal transactions on the part of the debtor
constituting a direct disadvantage to creditors
of the insolvency proceedings may be
contested if they were made
1. during
the last three months prior to the request to open
insolvency proceedings, if the
debtor
was illiquid on the date of such transaction, and
if the other party was aware of such
illiquidity on this date, or
2. subsequent to the request to open
insolvency proceedings, and if at the time when
the legal
transaction was made the
other party was aware of such illiquidity or of
the request to open
insolvency
proceedings.
(2) Legal transactions
constituting a direct disadvantage to creditors of
the insolvency
proceedings shall be
deemed equivalent to any other transaction of the
debtor divesting the
debtor of a right
or barring the debtor's claim to such right for
the future or maintaining a
property
claim against the debtor or rendering such claim
enforceable against the debtor.
(3)
Section 130 subs. 2 and 3 shall apply mutatis
mutandis.
Section 133: Wilful
Disadvantage
(1) A transaction made by
the debtor during the last ten years prior to the
request to open
insolvency proceedings,
or subsequent to such request, with the intention
to disadvantage his
creditors may be
contested if the other party was aware of the
debtor's intention on the date of
such
transaction. Such awareness shall be presumed if
the other party knew of the debtor's
imminent illiquidity, and that the
transaction constituted a disadvantage for the
creditors.
(2) An onerous contract
entered into by the debtor with a person with a
close relationship to
him (section 138)
directly constituting a disadvantage for the
creditors of the insolvency
proceedings
may be contested. Such contest shall be excluded
if the contract was entered
into
earlier than two years prior to the request to
open insolvency proceedings, or if the other
party was not aware of the debtor's
intention to disadvantage the creditors on the
date of such
contract.
Section 134: Gratuitous Benefit
(1) A gratuitous benefit granted by the
debtor may be contested unless it was made earlier
than four years prior to the request to
open insolvency proceedings.
(2) If
such benefit comprises a usual casual gift of
minor value the gift may not be contested.
Section 135: Loans Replacing Equity
Capital
A transaction may be contested
which, in consideration of a partner's claim to
restitution of his
loan replacing
equity capital or in consideration of an
equivalent claim,
1. provided a
security if such transaction was made during the
last ten years prior to the
request to
open insolvency proceedings or subsequent to such
request;
2. provided satisfaction if
such transaction was made during the last year
prior to the request
-
-
-
-
-
-
-
-
-
上一篇：《洋娃娃和小熊跳舞》教案1
下一篇：洋娃娃和小熊跳舞-教案