Alle Rechtstipps
26.04.2019
(updated on
07.04.2026
)
0
Min. read
Standard insolvency proceedings enable entrepreneurs and self employed persons to be discharged from their debts. In addition to the secure discharge of residual debt, further objectives of standard insolvency proceedings are the continuation of the business and, in particular, effective protection against attachment so that creditors can no longer enforce against the debtor. The question is under what conditions standard insolvency can be applied for, who can file for standard insolvency and how the proceedings are conducted.Who can apply for standard insolvency and what conditions must be metThere are two basic types of insolvency. Personal insolvency and standard insolvency. Personal insolvency is intended for private individuals and former self employed persons who meet certain conditions. Standard insolvency can be applied for and conducted by legal persons or self employed persons and freelancers. In order to be discharged from debt in standard insolvency proceedings, the debtor must be insolvent or overindebted. The Insolvency Code defines insolvency as the debtor’s inability to meet its due obligations. Insolvency is generally assumed where the debtor has stopped making payments. Imminent insolvency can also be grounds for opening insolvency proceedings. The debtor is at risk of insolvency if it is likely that it will not be able to meet its existing payment obligations when they fall due. In the case of a legal person, overindebtedness is also grounds for opening proceedings. Overindebtedness exists when the debtor’s assets no longer cover its liabilities, unless the continuation of the company is predominantly likely in the circumstances.How do standard insolvency proceedings workThe application to open standard insolvency proceedings must be filed with the competent insolvency court. An important part of the application is a complete list of creditors. The court will only grant the application if the costs of the proceedings are fully covered. However, natural persons have the option of applying for deferral of the costs of the standard insolvency proceedings. If all requirements are met, standard insolvency proceedings are opened. Once the insolvency administrator appointed by the court has assessed the financial situation of the debtor or company, he can convene a creditors meeting comprising the existing creditors in order to take decisions on the realisation of the estate or on continuation of the business. If the debtor has assets, these are distributed at the final hearing. First, the costs of the proceedings and of the trustee are paid. The remaining attachable assets are then distributed among the creditors. The court will terminate the insolvency proceedings by order once the estate has been distributed in accordance with the schedule of assets. This is followed by the period of good conduct and discharge of residual debt.Legal representation during standard insolvency proceedingsAs is clear, standard insolvency proceedings are extremely complex and time consuming. Legal advice during this process is almost indispensable.Attorney at law Hans Jörg Briest will advise you in all phases of standard insolvency proceedings, from preparation of the application to the period of good conduct and questions concerning discharge of residual debt.
Hans-Jörg Briest
Rechtsanwalt
Schwerpunkte:
Arbeitsrecht
Wirtschaftsrecht
Gesellschaftsrecht
Langjährige Erfahrung in der Beratung mittelständischer Arbeitgeber, insbesondere bei Restrukturierungen und Personalabbau.
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