Home » Fields of Law » Civil » Civil Procedure Law » Insolvency Statute (Insolvenzordnung, InsO)

Insolvency Statute (Insolvenzordnung, InsO)

Insolvency Statute (Insolvenzordnung, InsO) in PDF format (as of 1 January 2004), kindly provided by the Federal Ministry of Justice, but no longer available from their website


 

Promulgated on 5 October 1994, as last amended on 1 January 2002.

Translation provided by the Federal Ministry of Justice and reproduced with kind permission.

Insolvency Statute – Contents

  1. 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
  2. Part Two: Opening of Insolvency Proceedings. Involved Assets and Parties
    1. 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
      24. Section 34: Appeal
    2. 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
    3. 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
  3. Part Three: Effects of the Opening of Insolvency Proceedings
    1. Chapter One: General Effects
      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
    2. 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
    3. Chapter Three: Contest of the Debtor’s Transactions in Insolvency Proceedings
      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
  4. Part Four: Management and Disposition of the Assets Involved in the Insolvency Proceedings
    1. 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
    2. 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
    3. 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
      8. Section 172: Other Use of Movables
      9. Section 173: Disposition by the Creditor
  5. Part Five: Satisfaction of the Creditors of the Insolvency Proceedings. Discontinuation of the proceedings
    1. 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
    2. 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
    3. 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
      8. Section 214: Discontinuation Procedure
      9. Section 215: Publication and Legal Effects of Discontinuation
      10. Section 216: Appeal
  6. Part Six: Insolvency Plan
    1. 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
    2. 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
    3. 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
      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
  7. 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
  8. 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
  9. Part Nine: Consumer Insolvency Proceedings and other Minor Proceedings
    1. Chapter One: Scope of Application
      1. Section 304: Principle
    2. 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
      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
    3. 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
  10. Part Ten: Special Types of Insolvency Proceeding
    1. 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
    2. Chapter Two: Insolvency Proceedings relating to the Joint Marital Property with Continued Community
      1. Section 332: Transfer to Insolvency Proceedings opened for an Estate
    3. 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
  11. Part Eleven: Entering into Force
    1. Section 335: Referral to Introductory Act

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 Länder 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 Länder may delegate such power to the judicial administrations of the Länder.

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 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 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.

(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 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 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 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 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 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 über 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;

3. creditors with a right to withhold an object under the provisions of the Commercial Code;

4. the Federation, the Länder, 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.

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.

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

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 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 über Rechte an eingetragenen Schiffen und Schiffsbauwerken) and 16 and 17 of the Act Governing Rights in Aircraft (Gesetz über 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 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:

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 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 über 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 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 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 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 über 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 (Kündigungsschutzgesetz). 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.

(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 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.

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.

(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 to open insolvency proceedings or subsequent to such request.

Section 136: Silent Partnership

(1) A transaction may be contested by means of which a part or all of a silent partner’s interest was restituted to him or by means of which a part or all of a silent partner’s share in accrued losses was waived if the basic agreement was made during the last year prior to the request to open insolvency proceedings for the property owned by the manager of the business or subsequent to such request. This shall also apply if such agreement resulted in the liquidation of the silent partnership.

(2) Contention shall be excluded if a reason to open insolvency proceedings became existent only subsequent to the agreement.

Section 137: Payments on Bills of Exchange and Cheques

(1) The debtor’s payment on bills of exchange may not be claimed to be restituted by the recipient under section 130 if the law governing bills of exchange would have barred the recipient’s claims arising from the bill against other indorsers, the drawer or drawee if he had refused the debtor’s payment.

(2) However, the amount paid on a bill shall be restituted by the last indorser or, if he indorsed the bill on account of a third party, by such party if the last indorser or the third party was aware or, due to gross negligence, unaware of the debtor’s illiquidity or of the request to open insolvency proceedings on indorsing the bill or having it indorsed. Section 130 subs. 2 and 3 shall apply mutatis mutandis.

(3) Subs. 1 and 2 shall apply mutatis mutandis to payments on cheques on the part of the debtor.

Section 138: Persons with a Close Relationship to the Debtor

(1) If the debtor is an individual, persons with a close relationship to the debtor shall be:

1. the debtor’s spouse even if the marriage was contracted only after the transaction or as dissolved during the last year prior to the transaction;

2. the ascendants or descendants of the debtor or of the spouse designated at No. 1, the brothers and sisters related by consanguinity and affinity to the debtor and the spouse designated at No. 1, and the spouses of such persons;

3. persons living in the debtor’s household or having lived in the debtor’s household during the last year prior to the transaction.

(2) If the debtor is a corporation or a company without legal personality, the persons with a close relationship to the debtor shall be:

1. the members of the body representing or supervising the debtor, as well as his general partners and persons holding more than one quarter of the debtor’s capital;

2. a person or a company having on the basis of a comparable association with the debtor under company law or under a service contract the opportunity to become aware of the debtor’s financial circumstances;

3. a person having a personal relationship detailed at subs. 1 with a person named at No. 1 or 2; this shall not apply if the persons named at No. 1 or 2 are legally bound to secrecy regarding the debtor’s affairs.

Section 139: Calculation of Time Periods prior to the Request to Open Insolvency Proceedings

(1) The periods of time given in sections 88 and 130 to 136 shall commence on the beginning of the day corresponding by its number to the day when the request to open insolvency proceedings was received by the insolvency court. During a month lacking such day the time period shall commence on the beginning of the following day.

(2) If several requests to open insolvency proceedings have been received, the first admissible request containing grounds for opening insolvency proceedings shall be relevant even if the proceedings were opened due to a subsequent request. A request refused with final effect shall be taken into account only if such request was refused due to lacking assets involved in the insolvency proceedings.

Section 140: Date of Performance of Transaction

(1) A transaction shall be deemed performed on the date when its legal effects become existent.

(2) If legal effectiveness of a transaction requires registration in the Land Register, in the ship or shipbuilding register or in the register of liens on aircraft, such transaction shall be deemed performed as soon as the other conditions of its legal effectiveness are met, the debtor’s declaration of intent has become binding upon him, and the other party has requested registration of such transaction. If the registration of a priority notice was requested in order to secure the claim on the change in rights, the first sentence shall apply with the proviso that such request for priority notice shall replace the request to register the transaction.

Section 141: Executable Deed

Contestation shall not be excluded if an executable deed was acquired for the transaction, or if the transaction was performed by way of execution.

Section 142: Cash Transactions

Payments on the part of the debtor in return for which his property benefitted directly from an equitable consideration may only be contested under the conditions of section 133 subs. 1.

Section 143: Legal Consequences

(1) Any property of the debtor sold, transferred or relinquished under the transaction subject to contest must be restituted to the assets involved in the insolvency proceedings. The provisions governing the legal consequences of unjust enrichment with the recipient being aware of a lacking legal justification shall apply mutatis mutandis.

(2) The recipient of a gratuitous benefit shall restitute such benefit only to the extent of his enrichment. This shall not apply if he is aware or must be aware under the circumstances that the gratuitous benefit places the creditors at a disadvantage.

Section 144: Claims of the Party to the Contested Transaction

(1) If the recipient of a benefit under a transaction subject to contest restitutes the property received, his claim shall revive.

(2) Considerations shall be refunded 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, or to which such assets were augmented by its value. Further claims of the recipient of a benefit under a transaction which is subject to contest in respect of restitution of his consideration may be brought by such recipient only as a creditor of the insolvency proceedings.

Section 145: Transactions Contested and Enforced against Legal Successors

(1) A transaction may be contested against the heir or other comprehensive legal successor of the other party to such transaction.

(2) A transaction may be contested against another legal successor if such legal successor

1. was aware of the circumstances giving rise to the enrichment of his predecessor being subject to contention, on the date of his enrichment;

2. belonged to the persons with a close relationship to the debtor (section 138) on the date of his enrichment unless he was unaware of the circumstances giving rise to the enrichment of his predecessor being subject to contest on such date;

3. received the enrichment by way of a gratuitous transfer.

Section 146: Limitation of the Right to Contest

(1) The right to contest a transaction shall be subject to limitation after two years from the opening of the insolvency proceedings.

(2) Even if the right to contest has become subject to limitation, the insolvency administrator may refuse performance of an obligation in consideration of a benefit under a transaction subject to contest,

Section 147: Transactions carried out subsequent to the Opening of Insolvency Proceedings

(1) Transactions carried out after the opening of the insolvency proceedings and having legal effect under sections 892 and 893 of the Civil Code, 16 and 17 of the Act Governing Rights in Registered Ships and Ships Under Construction and 16 and 17 of the Act Governing Rights in Aircraft may be contested in accordance with the provisions governing the contest of transactions carried out before the insolvency proceedings were opened.

(2) The limitation period under section 146 subs. 1 shall begin on the date when the transaction became legally effective.

Part Four: Management and Disposition of the Assets involved in the Insolvency Proceedings

Chapter One: Arrestment of the Assets involved in the Insolvency Proceedings

Section 148: Transfer of the Assets involved in the Insolvency Proceedings

(1) Subsequent to the opening of the insolvency proceedings the insolvency administrator shall immediately assume possession and management of the whole property forming part of the assets involved in the insolvency proceedings.

(2) Using an executable duplicate of the order opening the insolvency proceedings the administrator shall be entitled to enforce by way of execution the dereliction of the chattels held in the debtor’s custody. Section 766 of the Code of Civil Procedure shall apply with the proviso that the enforcement judge shall be replaced by the insolvency court.

Section 149: Objects of Value

(1) The creditors’ committee may determine the agency and conditions of deposit or investment of currency, securities and objects of value. If a creditors’ committee has not been appointed, or has not yet taken a decision to this effect the insolvency court may give such orders.

(2) If a creditors’ committee has been appointed the insolvency administrator shall only be entitled to receive currency, securities or objects of value from the agency of the deposit or investment if a member of the creditors’ committee also signs the receipt. The administrator’s orders to such agency shall require the cosignature of a member of the creditors’ committee in order to become legally effective.

(3) The creditors’ assembly may decide otherwise.

Section 150: Sealing

In order to secure property forming part of the assets involved in the insolvency proceedings the insolvency administrator may have seals applied by the sheriff or any other legally authorised person. The document evidencing such sealing or the removal of seals shall be deposited by the administrator with the registry of the court for the parties’ inspection.

Section 151: Record of the Assets Involved in the Insolvency Proceedings

(1) The insolvency administrator shall establish a record of each object forming part of the assets involved in the insolvency proceedings. The debtor shall attend the establishment of such record if his attendance does not delay the proceedings to their detriment.

(2) The value of each object shall be indicated. If the value depends on whether the debtor’s enterprise is continued or closed down, both amounts shall be indicated. An expert may be charged with the assessment of objects whose value may be assessed only with particular difficulty.

(3) At the administrator’s request the insolvency court may waive the establishment of the record; grounds are to be given for the request. If a creditors’ committee was appointed the administrator may submit such request only with the consent of the creditors’ committee.

Section 152: Record of Creditors

(1) The insolvency administrator shall establish a record of all the debtor’s creditors of whom he is aware by inspection of the debtor’s records and business documents, by any other indication of the debtor, by filing their claims or in any other way.

(2) The record shall itemize the creditors with a claim to separate satisfaction and each category of lower-ranking creditors of the insolvency proceedings. The address of each creditor as well as the reason and the amount of claim shall be indicated. For creditors with a claim to separate satisfaction also the object subject to the claim of separate satisfaction and the amount of their probable nonsatisfaction shall be indicated; section 151 subs. 2 second sentence shall apply mutatis mutandis.

(3) In addition, the record shall indicate any situation enabling the set-off of claims against each other. The amount of the obligations incumbent on the assets involved in the insolvency proceedings shall be estimated if the debtor’s property is disposed of in an expeditious way.

Section 153: Survey of Property

(1) As of the date when the insolvency proceedings were opened the insolvency administrator shall establish an ordered survey indicating the objects forming part of the assets involved in the insolvency proceedings and the debtor’s obligations and balancing them. Section 151 subs. 2 shall apply mutatis mutandis to the assessment of the value of objects; section 152 subs. 2 first sentence shall apply mutatis mutandis to the itemization of the debtor’s obligations.

(2) After the establishment of the survey of property the insolvency court, at the administrator’s or a creditor’s request, may order the debtor’s affidavit regarding the completeness of the survey of property. Sections 98 and 101 subs. 1 first and second sentences shall apply mutatis mutandis.

Section 154: Deposit with the Registry of the Insolvency Court

The record of the assets involved in the insolvency proceedings, the record of creditors and the survey of property shall be deposited with the registry of the insolvency court for the parties’ inspection at the latest one week prior to the report meeting.

Section 155: Accounting under Commercial and Fiscal Law

(1) The debtor’s obligations under commercial and fiscal law to keep and render accounts shall remain unaffected. With respect to the assets involved in the insolvency proceedings such obligations shall be incumbent on the insolvency administrator.

(2) A new financial year shall begin when the insolvency proceedings are opened. However, the period elapsed prior to the report meeting shall not be taken into account in legal periods provided for the establishment or publication of financial statements.

(3) Section 318 of the Commercial Code shall apply to the appointment of the balance sheet auditor in the insolvency proceedings with the proviso that such auditor shall be appointed exclusively by the Register Court at the administrator’s request. If an auditor was appointed for the financial year prior to the opening of the insolvency proceedings the validity of such appointment shall remain unaffected by the opening of the insolvency proceedings.

Chapter Two: Decision on Disposition

Section 156: Report Meeting

(1) At the report meeting the insolvency administrator shall report on the economic situation of the debtor and its causes. He shall assess any prospects of maintaining the debtor’s enterprise as a whole or in part, indicate any possibility of drawing up an insolvency plan and describe the effects of each solution on the satisfaction of the creditors.

(2) The debtor, the creditors’ committee, the works council and the spokesmen of officers shall be given the opportunity to make their statements on the administrator’s report at the report meeting. If the debtor is a trader, craftsman or farmer, the competent official professional representative body of industry, trade, the craft or of agriculture may also be given the opportunity to express their views at the report meeting.

Section 157: Decision on the Further Proceedings

At the report meeting the creditors’ assembly shall decide whether the debtor’s enterprise should be closed down or temporarily continued. The assembly may commission the administrator to draw up an insolvency plan and determine the plan’s objective for him. The assembly may modify its decisions at subsequent meetings.

Section 158: Measures prior to the Decision

(1) If the insolvency administrator intends to close the debtor’s enterprise prior to the report meeting he shall obtain the consent of the creditors’ committee if appointed.

(2) Before the creditors’ committee takes its decision or, if such committee has not been appointed, before closing down the enterprise the administrator shall inform the debtor thereof. At the request of the debtor and after hearing the administrator the insolvency court shall refuse such close-down of the enterprise if the close-down can be suspended until the report meeting without considerably reducing the assets involved in the insolvency proceedings.

Section 159: Disposition of the Assets Involved in the Insolvency Proceedings

After the report meeting the administrator shall immediately liquidate the property forming the assets involved in the insolvency proceedings, unless such disposition contradicts any decisions taken by the creditors’ assembly.

Section 160: Transactions of Particular Importance

(1) The insolvency administrator shall obtain the consent of the creditors’ committee if he intends to engage in transactions which are of particular importance to the insolvency proceedings. If no creditors’ committee has been appointed, he shall obtain the consent of the creditors’ assembly.

(2) Consent under subs. 1 shall be required in particular

1. if such transaction purports to sell the enterprise, plant, the entire stock, a part of real property to be disposed of by private sale, the debtor’s shares in another enterprise if such shares are intended to bring about a permanent affiliation to such other enterprise or the entitlement to receive recurring earnings;

2. if such transaction purports to enter into a loan contract with considerable burdens on the assets involved in the insolvency proceedings;

3. if such transaction purports to bring or join a court action amounting to a considerable value in dispute, to refuse the bringing of such action, or to negotiate a settlement or compromise to settle or avoid any such action.

Section 161: Provisional Prohibition of the Transaction

In any of the cases covered by section 160 the insolvency administrator shall inform the debtor before the creditors’ committee or assembly take a decision if such information is possible without delaying the insolvency proceedings to their detriment. If the creditors’ assembly has not given its consent, at the request of the debtor or of a majority of creditors qualifying under section 75 subs. 1 No. 3 and after hearing the administrator the insolvency court may provisionally prohibit the transaction and convene a creditors’ assembly for a decision to be taken on the transaction.

Section 162: Sale of Plant to Persons with Specific Interests

(1) The sale of the enterprise or plant shall require the approval of the creditors’ assembly if the purchaser or a person holding at least one fifth of the purchaser’s capital

1. belongs to the persons with a close relationship to the debtor (section 138);

2. is a creditor with a right to separate satisfaction or a creditor of the insolvency proceedings with non-lower ranking claims whose rights to separate satisfaction and claims are assessed by the insolvency court to reach a total of one fifth of the sum of the value of all rights to separate satisfaction and of the amounts of the claims of all creditors of the insolvency proceedings with non-lower ranking claims.

(2) A person shall also be deemed to hold, shares of the purchaser for the purpose of subs. 1 if an enterprise controlled by the person or a third party holds shares of the purchaser on behalf of the person or of the controlled enterprise.

Section 163: Sale of Plant below Value

(1) At the request of the debtor or of a majority of creditors qualifying under section 75 subs. 1 No. 3 and after hearing the insolvency administrator the insolvency court may order that the envisaged sale of the enterprise or of plant shall require the approval of the creditors’ assembly if the requesting party proves to the satisfaction of the court that a sale to another purchaser would be more beneficial to the assets involved in the insolvency proceedings.

(2) If the requesting party has incurred costs for such request, he shall be entitled to reimbursement of such costs by the assets involved in the insolvency proceedings as soon as the court issues its order.

Section 164: Legal Validity of the Transaction

A contravention of sections 160 to 163 shall leave the validity of the acts of the insolvency administrator unaffected.

Chapter Three: Objects Subject to a Right to Separate Satisfaction

Section 165: Disposition of Immovables

The insolvency administrator may initiate with the competent court auctions or sequestrations of immovables forming part of the assets involved in the insolvency proceedings even if such immovables are subject to a right to separate satisfaction.

Section 166: Disposition of Movables

(1) The insolvency administrator may dispose of a movable item subject to a right to separate satisfaction without restriction if he holds its possession.

(2) The insolvency administrator may collect or in another way dispose of a claim assigned by the debtor in order to secure a claim. This shall not apply if the claim has been assigned to the participant in a system in accordance with section 96 subs. 2 second or third sentence in order to safeguard his claims from the system or to the central bank of a Member State of the European Union or a Contracting Party of the Agreement on the European Economic Area or to the European Central Bank.

Section 167: Notification of the Creditor

(1) If the insolvency administrator is entitled to dispose of a movable item under section 166 subs. 1 he shall notify the condition of the movable item to the creditor with a right to separate satisfaction at the latter’s request. Instead of such notification the administrator may allow the creditor to inspect the object.

(2) If the administrator is entitled to collect a claim under section 166 subs. 2 he shall notify the claim to the creditor with a right to separate satisfaction at the latter’s request. Instead of such notification he may allow the creditor to inspect the debtor’s books and business documents.

Section 168: Notification of Envisaged Sale

(1) Before the insolvency administrator sells an object with regard to which he is entitled to disposition under section 166 to a third party he shall notify how such envisaged sale is to be carried out to the creditor with a right to separate satisfaction. He shall give the creditor the opportunity of pointing out within a week another means of selling the object which would be more beneficial to the creditor.

(2) If such notification is given, within a week or in good time before the sale, the administrator shall take advantage of such opportunity or recompense the creditor as if he had taken advantage of it.

(3) Such other opportunity of disposition may also consist in the object’s devolution to the creditor himself. An opportunity to sell shall also be deemed more beneficial if savings are made on expenses.

Section 169: Protection of the Creditor Against Delayed Disposition

If an object with regard to which the insolvency administrator is entitled to disposition under section 166 is not disposed of by him, the creditor shall be paid the current interest due to him from the assets involved in the insolvency proceedings beginning from the report meeting. If the insolvency court issued an order under section 21 prohibiting the creditor to dispose of the object before the insolvency proceedings were opened the interest due shall be paid at the latest from the date three months after such order by the court. The first and second sentences shall not apply to the extent to which, in view of the amount of the creditor’s claim, the value and any other right encumbering the object will probably not be sufficient in order to satisfy the creditor by the proceeds of the disposition.

Section 170: Distribution of Proceeds

(1) Subsequent to disposition of a movable item or a claim by the insolvency administrator the costs of determining and disposing of the object shall be credited to the assets involved in the insolvency proceedings in advance using the proceeds. The remaining amount shall be used without delay to satisfy the creditor with a right to separate satisfaction.

(2) If the insolvency administrator transfers an object with regard to which he is entitled to disposition under section 166 to the creditor to be disposed of by the latter, the creditor shall contribute an amount covering the costs of determination and turnover tax (section 171 subs. 2 third sentence) in advance to the assets involved in the insolvency proceedings using the proceeds gained by him.

Section 171: Calculation of the Contribution to Costs

(1) The costs of determination comprise the costs of the actual identification of the object and of the determination of any rights encumbering the object. Such costs shall be rated as a lump sum of four percent of the proceeds.

(2) The costs of disposition shall be rated as a lump sum of five percent of the proceeds. If the costs actually incurred which were necessary for the disposition were considerably lower or considerably higher, these costs shall be taken as a basis. If disposition entails the assets involved in the insolvency proceedings incurring turnover tax, this amount shall be charged in addition to the lump sum pursuant to sentence one or the costs actually incurred pursuant to sentence two.

Section 172: Other Use of Movables

(1) The insolvency administrator may use a movable item with regard to which he is entitled to disposition for the assets involved in the insolvency proceedings if the loss in value accruing from such use is recompensed by current payments to the creditor beginning from the opening of the insolvency proceedings. Such obligation to recompensing payments shall only exist to the extent to which the loss in value accruing from such use impairs the security of the creditor with a right to separate satisfaction.

(2) The administrator shall be entitled to combine, merge and transform such object with other property so long as such change of the condition of the object does not impair the security of the creditor with a right to separate satisfaction. If the creditor’s right devolves to other property the creditor shall transfer such new security to the administrator to the extent to which its value exceeds the previous value.

Section 173: Disposition by the Creditor

(1) If the insolvency administrator is not entitled to dispose of a movable item or a claim subject to a claim to separate satisfaction the creditor’s right to dispose of such object shall remain unaffected.

(2) At the administrator’s request and after hearing the creditor the insolvency court may determine a period of time during which the creditor has to dispose of the object. Upon expiry of such period of time the administrator shall be entitled to its disposition.

Part Five: Satisfaction of the Creditors of the Insolvency Proceedings. Discontinuation of the Proceedings

Chapter One: Determination of Claims

Section 174: Filing of Claims

(1) The claim of a creditor of the insolvency proceedings must be filed in writing with the insolvency administrator. Such filing shall be accompanied by copies of the documents evidencing the claim.

(2) Upon its filing the reason and the amount of the claim shall be indicated, as shall the facts from which in the view of the creditor it emerges that it is based on an unauthorised act on the part of the debtor committed with intent.

(3) Lower-ranking creditors shall file their claims only if specifically requested by the insolvency court to do so. Upon filing such claims their lower-ranking status shall be indicated, and the creditor’s lower rank shall be designated.

Section 175: Schedule

(1) The insolvency administrator shall enter any registered claim into a schedule with the indications under section 174 subs. 2 and 3. Such schedule shall be deposited with the registry of the insolvency court, together with the applications and enclosed certificates for the parties’ inspection within the first third of the period of time between the expiry of the filing period and the verification meeting.

(2) If a creditor has registered a claim from an unauthorised act committed with intent, the insolvency court shall indicate to the debtor the legal consequences of section 302 and the possibility of an objection.

Section 176: Proceedings of the Verification Meeting

During the verification meeting the filed claims shall be verified in accordance with their amount and rank. Claims denied by the insolvency administrator, by the debtor or by a creditor of the insolvency proceedings shall be discussed individually.

Section 177: Subsequent Filings

(1) During the verification meeting verification shall also include claims filed after expiry of the filing period. However, if the insolvency administrator or a creditor of the insolvency proceedings objects to the verification of such claims, or if a claim is filed only after the verification meeting, the insolvency court shall either docket a special verification meeting or order verification in written proceedings, and burden the defaulter with the costs. The first and second sentences shall apply mutatis mutandis to subsequent amendments to filed claims.

(2) If the insolvency court requested lower-ranking creditors to file their claims in accordance with section 174 subs. 3, and if the period of time determined for such filings expires later than one week prior to the verification meeting, the court shall either docket a special verification meeting or order verification in written proceedings, and burden the assets involved in the insolvency proceedings with its costs .

(3) The date of the special verification meeting shall be published. The creditors of the insolvency proceedings filing claims, the insolvency administrator and the debtor shall receive individual summons to such meeting. Section 74 subs. 2 second sentence shall apply mutatis mutandis.

Section 178: Prerequisites and Effects of Determination of Claims

(1) A claim shall be deemed to have been determined if no denial is made by the insolvency administrator or by a creditor of the insolvency proceedings during the verification meeting, or in the written proceedings (section 177) or if any denial made by a party is removed. The debtor’s denial shall not bar determination of a claim.

(2) For each filed claim the insolvency court shall enter in the schedule the extent to which a claim was determined with its amount or rank, or which party objected to its determination. An objection on the part of the debtor shall also be entered in the schedule. Determination shall be marked on bills of exchange and any other debt instruments by the registrar of the insolvency court.

(3) For claims determined with their amount and rank, entry into the schedule shall have the legal effect of a final judgment with respect to the insolvency administrator and all creditors of the insolvency proceedings.

Section 179: Denied Claims

(1) If a claim was denied by the insolvency administrator or by a creditor of the insolvency proceedings, initiation of proceedings to determine such claim against the denying party shall be left to the creditor.

(2) If such claim is based on an executable deed or a final judgment, following up the denial shall be incumbent on the denying party.

(3) The insolvency court shall provide the creditor whose claim was denied a certified extract from the schedule. In the case mentioned at subs. 2 the denying party shall also receive such extract. The creditors whose claims have been determined shall not be notified; the creditors’ attention shall be drawn to this prior to the verification meeting.

Section 180: Competence for the Determination of Claims

(1) An action for the determination of a claim shall be brought under the provisions governing ordinary civil proceedings. The Local Court where the insolvency proceedings are or were pending shall have exclusive jurisdiction for such action. If the subject matter of the action does not fall under the jurisdiction of the Local Courts, the Regional Court in whose district the insolvency court is located shall have exclusive jurisdiction.

(2) If an action concerning such claim was pending on the date when the insolvency proceedings were opened, determination of the claim shall be initiated by the joinder of such action.

Section 181: Scope of Determination

Determination of a claim with its grounds, amount and rank may only be applied for to the extent indicated when it was filed or during the verification meeting.

Section 182: Value of Action

The value of an action to determine a claim whose legal validity was denied by the insolvency administrator or by a creditor of the insolvency proceedings shall depend on the amount to be expected for the claim as a result of distribution of the assets involved in the insolvency proceedings.

Section 183: Effect of the Decision

(1) A decision with final and binding effect determining a claim or sustaining an objection shall be effective with respect to the insolvency administrator and all creditors of the insolvency proceedings.

(2) The prevailing party shall request amendment of the schedule with the insolvency court.

(3) If only individual creditors have pursued the action, but not the insolvency administrator, these creditors may claim reimbursement of their costs from the assets involved in the insolvency proceedings to the extent to which such assets have benefitted from the judicial decision.

Section 184: Action to Enforce a Claim Denied by the Debtor

If the debtor denied a claim during the verification meeting or in the written proceedings (section 177) the creditor may bring an action against the debtor in order to determine such claim. If an action concerning such claim was pending on the date when the insolvency proceedings were opened the creditor may continue such action against the debtor.

Section 185: Special Jurisdiction

If an action for the determination of a claim could not be brought under the provisions governing ordinary civil proceedings its determination shall be initiated with any other court having jurisdiction or with the competent administrative agency. Sections 180 subs. 2 and sections 181, 183 and 184 shall apply mutatis mutandis. If another court has jurisdiction to determine such claim section 182 shall also apply mutatis mutandis.

Section 186: Restitutio in Integrum

(1) If the debtor did not attend the verification meeting the insolvency court, at his request, shall grant him restitutio in integrum. Sections 51 subs. 2, 85 subs. 2 and 233 to 236 of the Code of Civil Procedure shall apply mutatis mutandis.

(2) The writs concerning a request of restitutio in integrum shall be served on the creditor whose claim is to be subsequently contested. Contestation in such writs shall be deemed equivalent to denial during the verification meeting if restitutio in integrum is granted.

Chapter Two: Distribution

Section 187: Satisfaction of the Creditors of the Insolvency Proceedings

(1) Satisfaction of the creditors of the insolvency proceedings may be initiated only after the general verification meeting.

(2) Funds may be distributed among the creditors of the insolvency proceedings as soon as sufficient cash is available in the assets involved in the insolvency proceedings. Lower-ranking creditors of the insolvency proceedings shall not be considered for advance distributions.

(3) Distributions shall be carried out by the insolvency administrator. Before each distribution he shall obtain the consent of the creditors’ committee if appointed.

Section 188: Distribution Record

Prior to distribution the insolvency administrator shall establish a record of the claims to be considered in respect of distribution. Such record shall be deposited with the registry of the insolvency court for the parties’ inspection. The administrator shall publish the total amount of claims and the amount available for distribution from the assets involved in the insolvency proceedings.

Section 189: Consideration of Denied Claims

(1) An insolvency creditor whose claim has not been determined and is not based on an executable deed or a final judgment shall, at the latest within a limitation period of two weeks from publication, prove to the insolvency administrator that and for which amount he has brought an action to determine the claim or joindered the proceedings to a previously pending action.

(2) If proof is provided in good time, the share allocated to such claim shall be retained from distribution as long as such action is pending.

(3) If proof is not provided in good time, the claim shall not be taken into account in distribution.

Section 190: Consideration of Creditors with a Right to Separate Satisfaction

(1) A creditor with a right to separate satisfaction shall, at the latest within the limitation period under section 189 subs. 1, prove to the insolvency administrator that and for which amount he has waived separate satisfaction or his claim was not met by such separate satisfaction. If proof is not provided in good time, the claim shall not be taken into account in distribution.

(2) The creditor shall be deemed to have met his obligation under subs. 1 in order to share in advance distribution if he, at the latest within such limitation period, proves to the insolvency administrator that disposition of the object subject to a right to separate satisfaction is being initiated, and which amount of his claim is likely not to be satisfied. In such a case the share covering the amount of his claim shall be retained in distribution. If the conditions under subs. 1 are not met at final distribution the retained share shall be free to flow into the final distribution.

(3) If only the insolvency administrator is entitled to dispose of an object subject to a right to separate satisfaction, subs. 1 and 2 shall not apply. In the case of advance distribution, if the administrator has not yet disposed of the object, he shall estimate the extent to which the creditor’s claim will not be met by separate satisfaction and retain the share covering such claim.

Section 191: Consideration of Claims Subject to a Condition Precedent

(1) The full amount of claims subject to a condition precedent shall be taken into account in the case of advance distribution. The share covering the claim shall be retained in distribution.

(2) Claims subject to a condition precedent shall not be taken into account during final distribution if the possibility of accomplishment of the condition is so distant that the claim is valueless on the date of distribution. In such a case the share retained under subs. 1 second sentence shall be free to flow into final distribution.

Section 192: Subsequent Consideration

Creditors not taken into account in advance distribution and who meet the conditions under sections 189 and 190 shall in the next distribution be advanced an amount from the remainder of the assets involved in the insolvency proceedings placing them on an equal footing with the other creditors.

Section 193: Amendments to the Distribution Record

The insolvency administrator shall append any amendment to the record required under sections 189 to 192 within three days of the expiry of the limitation period mentioned at section 189 subs. 1.

Section 194: Objections to the Distribution Record

(1) In the case of advance distribution, a creditor shall bring his objection to the record to the notice of the insolvency court within one week after expiry of the limitation period mentioned at section 189 subs. 1.

(2) A judicial decision overruling objections shall be served on the creditor and the insolvency administrator. The creditor may bring an immediate appeal against such a decision.

(3) A judicial decision ordering an correction to the record shall be served on the creditor and the administrator and deposited with the registry of the insolvency court for the parties’ inspection. The administrator and the creditors of the insolvency proceedings may bring an immediate appeal against such a decision. The period of such appeal shall begin on the day of the deposit of the decision.

Section 195: Determination of a Fraction

(1) At the proposal of the insolvency administrator, the creditors’ committee shall determine the fraction to be paid in the case of advance distribution. If no creditors’ committee has been appointed, the insolvency administrator shall identify such fraction.

(2) The administrator shall bring such fraction to the notice of those creditors who have been taken into account.

Section 196: Final Distribution

(1) Final distribution shall take place as soon as the assets involved in the insolvency proceedings have been disposed of, with the exception of current income.

(2) Final distribution shall require the consent of the insolvency court.

Section 197: Final Meeting

(1) While consenting to final distribution the insolvency court shall docket a meeting for the final creditors’ assembly. During such meeting

1. the insolvency administrator’s final account shall be discussed,

2. objections to the final record may be brought, and

3. the creditors shall decide on any objects forming part of the assets involved in the insolvency proceedings not apt to be disposed of.

(2) The period of time extending between the publication of the date of the meeting and such meeting shall not fall below one month and not exceed two months.

(3) Section 194 subs. 2 and 3 shall apply mutatis mutandis to the decision of the insolvency court on objections raised by a creditor

Section 198: Deposit of Retained Funds

Funds to be retained in final distribution shall be deposited with suitable agency by the insolvency administrator on account of the parties involved.

Section 199: Surplus Resulting from Final Distribution

If the claims of all creditors of the insolvency proceedings can be satisfied in final distribution the insolvency administrator shall transfer any remaining surplus to the debtor. If the debtor is not an individual the insolvency administrator shall transfer to any person owning a share of the debtor’s capital the share of such surplus devolving to such person under liquidation outside the insolvency proceedings

Section 200: Termination of the Insolvency Proceedings

(1) As soon as final distribution has been carried out, the insolvency court shall decide on termination of the insolvency proceedings.

(2) Such decision and the reason underlying such termination shall be published. Section 9 remaining unaffected, the notification shall be published in extract form in the Federal Bulletin. Sections 31 to 33 shall apply mutatis mutandis.

Section 201: Rights of the Creditors of the Insolvency Proceedings subsequent to Termination

(1) Subsequent to termination of the insolvency proceedings, the creditors of these proceedings may enforce the remainder of their claims against the debtor without restriction.

(2) Creditors of the insolvency proceedings who have determined claims which have not been denied by the debtor during the verification meeting may enforce such claims against the debtor by way of execution on the legal basis of their entry into the schedule as under an executable judgment. A claim with an overruled objection shall be equivalent to a claim not denied. The application for the issuance of an executable copy of the schedule may not be filed until the insolvency proceedings have been terminated.

(3) Provisions on discharge of residual debt shall remain unaffected.

Section 202: Jurisdiction for Execution

(1) Under the circumstance of section 201, the Local Court where the insolvency proceedings are or were pending shall have exclusive jurisdiction for any action

1. brought to obtain the clause of execution;

2. brought to deny the accomplishment of the prerequisites to grant such clause after it was obtained;

3. brought to enforce any objection to the claim itself.

(2) If the subject matter of such action does not fall within the jurisdiction of the Local Courts, exclusive jurisdiction shall be vested in the Regional Court in whose district the insolvency court is located.

Section 203: Order to Carry Out Delayed Distribution

(1) At the request of the insolvency administrator or of a creditor of the insolvency proceedings or ex officio the insolvency court shall order delayed distribution if after the final meeting

1. retained funds become available for distribution.

2. funds paid from the assets involved in the insolvency proceedings flow back to them, or

3. objects forming part of the assets involved in the insolvency proceedings are identified.

(2) Termination of the insolvency proceedings shall not bar issuance of an order to carry out delayed distribution.

(3) The court may refrain from issuing such order and transfer the available amount or identified object to the debtor if such proceedings appear to the court to be adequate given the low value of the amount or of the object and the costs of delayed distribution. It may condition its order on the advancement of funds covering the costs of such delayed distribution.

Section 204: Appeal

(1) The decision refusing to carry out delayed distribution shall be served on the requesting party. Such party may bring an immediate appeal against the decision.

(2) The decision ordering delayed distribution shall be served on the insolvency administrator, the debtor and any creditor requesting such delayed distribution. The debtor may bring an immediate appeal against the decision.

Section 205: Implementation of Delayed Distribution

Once delayed distribution has been ordered, the insolvency administrator shall distribute the available amount or the proceeds from disposition of the identified object on the basis of the final record. He shall render account of such distribution to the insolvency court.

Section 206: Exclusion of Creditors of the Assets Involved in the Insolvency Proceedings

Creditors of the assets involved in the insolvency proceedings of whose claims the insolvency administrator has become aware

1. only after determination of the fraction in advance distribution,

2. only after the final meeting had been closed during final distribution, or

3. if delayed distribution was ordered, only after its publication

may claim satisfaction only from the funds remaining as assets involved in the insolvency proceedings.

Chapter Three: Discontinuation of Insolvency Proceedings

Section 207: Discontinuation for Lacking Assets Involved in the Insolvency Proceedings

(1) If after the insolvency proceedings have been opened it is found that the assets involved in the insolvency proceedings are insufficient to cover the costs of the proceedings, the insolvency court shall discontinue such proceedings. Discontinuation shall not be ordered if sufficient funds are advanced or if the costs are deferred in accordance with section 4a; section 26 subs. 3 shall apply mutatis mutandis.

(2) The creditors’ assembly, the insolvency administrator and the creditors of the assets involved in the insolvency proceedings shall be heard prior to discontinuation.

(3) Any cash funds available in the assets involved in the insolvency proceedings shall be used by the administrator prior to discontinuation of the proceedings in order to settle the costs of the proceedings, and among such costs firstly expenses in proportion to their amounts. The administrator shall no longer be under an obligation to dispose of the assets involved in the insolvency proceedings.

Section 208: Notification of Lacking Assets Involved in the Insolvency Proceedings

(1) If the costs of the insolvency proceedings are covered but the assets involved in the insolvency proceedings are insufficient to settle the other mature obligations incumbent on the assets involved in the insolvency proceedings, the insolvency administrator shall notify the insolvency court of lacking assets involved in the insolvency proceedings. The same shall apply if it is likely that the assets will be insufficient to meet the other existing obligations incumbent on the assets involved in the insolvency proceedings on the date of their maturity.

(2) The court shall publish the notification of lacking assets involved in the insolvency proceedings. Such notification shall be served separately on the creditors of the assets involved in the insolvency proceedings.

(3) The duty incumbent on the insolvency administrator to administer and dispose of the assets involved in the insolvency proceedings shall also continue subsequent to the notification of lacking assets.

Section 209: Satisfaction of the Creditors of the Assets Involved in the Insolvency Proceedings

(1) The insolvency administrator shall settle the obligations incumbent on the assets involved in the insolvency proceedings in the following order, and equal-ranking obligations in proportion to the amounts:

1. the costs of the insolvency proceedings;

2. obligations incumbent on the assets involved in the insolvency proceedings which became legally effective after the notification of lacking assets involved in the insolvency proceedings without falling under the costs of the proceedings;

3. the other obligations incumbent on the assets involved in the insolvency proceedings, including lastly the maintenance granted pursuant to sections 100 and 101 subs. 1 third sentence.

(2) The following obligations shall also be deemed obligations incumbent on the assets involved in the insolvency proceedings in the meaning of subs. 1 No. 2

1. under a mutual contract for whose performance the administrator opted subsequent to notifying lacking asset involved in the insolvency proceedings;

2. under a continuing obligation for the period after the first date on which the administrator was entitled to terminate such contract after notifying lacking assets involved in the insolvency proceedings;

3. under a continuing obligation to the extent that the administrator has claimed its consideration to the benefit of the assets involved in the insolvency proceedings after notifying lacking assets involved in the insolvency proceedings.

Section 210: Prohibition of Execution

As soon as the insolvency administrator has notified lacking assets involved in the insolvency proceedings, execution in respect of an obligation incumbent on the assets involved in the insolvency proceedings in the meaning of section 209 subs. 1 No. 3 shall be inadmissible.

Section 211: Discontinuation upon Notification of Lacking Assets Involved in the Insolvency Proceedings

(1) As soon as the insolvency administrator has distributed the assets involved in the insolvency proceedings under section 209, the insolvency court shall discontinue the insolvency proceedings.

(2) The administrator shall render separate account of his activities after the notification of lacking assets involved in the insolvency proceedings.

(3) If objects forming part of the assets involved in the insolvency proceedings are identified after discontinuation of such proceedings the court, at the request of the administrator or of a creditor of the assets involved in the insolvency proceedings, or ex officio, shall order delayed distribution. Sections 203 subs. 3, as well as 204 and 205 shall apply mutatis mutandis.

Section 212: Discontinuation for Subsequent Lack of Grounds to Open Insolvency Proceedings

At the debtor’s request the insolvency proceedings shall be discontinued if it is ensured that he, after such discontinuation, will no longer be subject to (imminent) illiquidity or overindebtedness if the insolvency proceedings were opened due to overindebtedness. Admissibility of such a request shall require the debtor to show to the satisfaction of the court that there is no reason to open insolvency proceedings.

Section 213: Discontinuation with the Creditors’ Consent

(1) At the debtor’s request the insolvency proceedings shall be discontinued if he, after expiry of the filing period, submits declarations of consent on the part of all creditors of the insolvency proceedings who have filed claims. For creditors whose claims are denied by the debtor or by the insolvency administrator, and in the case of creditors with a right to separate satisfaction, the insolvency court shall decide on its own discretion on the requirement for consent to be given by such creditors or a security to be provided to them.

(2) The proceedings may be discontinued at the debtor’s request even prior to expiry of the filing period if no other creditors are known than those whose declarations of consent were submitted by the debtor.

Section 214: Discontinuation Procedure

(1) A request to discontinue insolvency proceedings under sections 212 or 213 shall be published. It shall be deposited with the registry of the court for the parties’ inspection; in the case mentioned at section 213 it shall be accompanied by the creditors’ declarations of consent. The creditors of the insolvency proceedings may object to such a request within one week after publication, either in writing or for the records of the court registry.

(2) Before deciding on the discontinuation of insolvency proceedings the court shall hear the requesting party, the insolvency administrator and the creditors’ committee, if appointed. If a creditor objects to such a request, he shall also be heard by the court.

(3) Prior to discontinuation, the administrator shall settle any claims on the assets involved in the insolvency proceedings which have not been denied and provide a security for claims which have been denied.

Section 215: Publication and Legal Effects of Discontinuation

(1) A decision discontinuing insolvency proceedings under sections 207, 211, 212 or 213 and the reason underlying such discontinuation shall be published. The date when such discontinuation will become effective (section 9 subs. 1 third sentence) shall be brought to the notice of the debtor, the insolvency administrator and the members of the creditors’ committee in advance. Sections 200 subs. 2 second and third sentence shall apply mutatis mutandis.

(2) Upon discontinuation of the insolvency proceedings the right to dispose freely of the assets involved in the insolvency proceedings shall be transferred back to the debtor. Sections 201 and 202 shall apply mutatis mutandis.

Section 216: Appeal

(1) If the insolvency proceedings are discontinued under sections 207, 212 or 213 each creditor may bring an immediate appeal, and also the debtor may bring an immediate appeal if his insolvency proceedings were discontinued under section 207.

(2) If a request is rejected under sections 212 or 213, the debtor may bring an immediate appeal.

Part Six: Insolvency Plan

Chapter One: Establishment of the Plan

Section 217: Policy

Counter to the provisions of this statute, the satisfaction of creditors entitled to separate satisfaction and of the creditors of the insolvency proceedings, the disposition of the assets involved in insolvency proceedings and their distribution to the parties concerned, as well as the debtor’s liability subsequent to termination of the insolvency proceedings, may be settled in an insolvency plan.

Section 218: Submission of the Insolvency Plan

(1) The insolvency administrator and the debtor shall be entitled to submit an insolvency plan to the insolvency court. Submission by the debtor may be connected with a request to open insolvency proceedings. A plan received by the court after the final creditors’ assembly shall not be taken into account.

(2) If the creditors’ assembly has charged the administrator with the establishment of an insolvency plan, the administrator shall submit such plan to the court within a reasonable period of time.

(3) The establishment of the plan by the administrator shall be commented by the creditors’ committee, if appointed, by the works council, by the spokesmen of officers and by the debtor as advisors.

Section 219: Breakdown of the Plan

The insolvency plan shall consist of a declaratory and a constructive part. It shall be accompanied by the attachments mentioned at sections 229 and 230.

Section 220: Declaratory Part

(1) The declaratory part of the insolvency plan shall describe the measures taken or still to be taken after opening the insolvency proceedings in order to create the basis for the envisaged establishment of the rights held by the parties involved.

(2) The declaratory part shall contain all other information on the basis and effects of the plan which are relevant to the decision of the creditors on approval of the plan, and for its confirmation by the court.

Section 221: Constructive Part

The constructive part of the insolvency plan shall determine the transformation of the legal position of the parties involved, by the insolvency plan.

Section 222: Formation of Groups

(1) While determining the rights held by the parties involved in the insolvency plan, groups shall be formed where creditors are concerned with differing legal status. A distinction shall be made between

1. the creditors entitled to separate satisfaction if their rights are encroached upon by the plan;

2. the non-lower ranking creditors;

3. each class of lower-ranking creditors of the insolvency proceedings unless their claims are deemed to be waived pursuant to section 225.

(2) Creditors with equal rights may form groups where creditors with equivalent economic interests are set together. Such groups shall be adequately separated from each other. The criteria of their separation shall be indicated in the plan.

(3) Employees shall form a separate group if they are claiming major amounts as creditors of the insolvency proceedings. Separate groups may be formed for minor creditors.

Section 223: Rights of Creditors Entitled to Separate Satisfaction

(1) If the insolvency plan does not provide otherwise, the plan shall not affect the right of creditors entitled to separate satisfaction to achieve satisfaction from objects subject to rights of separation. Any derogating provision shall be ruled out in respect of securities provided to

1. the participant in a system in accordance with section 96 subs. 2 second or third sentence to safeguard his claims from the system, or

2. the central bank of a Member State of the European Union or the European Central Bank.

(2) If the plan provides otherwise the plan in its constructive part shall, for creditors entitled to separate satisfaction, indicate the fraction by which their rights will be reduced, detail; the period of respite for their claims, or provide for any other provisions binding upon them.

Section 224: Rights of the Creditors of the Insolvency Proceedings

For the non-lower ranking creditors the constructive part of the insolvency plan shall indicate the fraction by which their claims will be reduced, detail the period of respite for their claims, announce the securities for them or provide for any other provisions to which they are to be subjected.

Section 225: Rights of Lower-ranking Creditors of the Insolvency Proceeding

(1) The claims of lower-ranking creditors of the insolvency proceedings shall be deemed waived unless the insolvency plan provides otherwise.

(2) If the insolvency plan provides otherwise, the constructive part, for each group of lower-ranking creditors, shall give the indications required under section 224.

(3) The debtor’s liability for fines and his obligations equal to such penalties under section 39 subs. 1 No. 3 subsequent to termination of the insolvency proceedings can neither be excluded nor limited by a plan.

Section 226: Equal Treatment of Parties Involved

(1) Within each group all parties involved shall be offered equal rights.

(2) Any distinct treatment of the parties forming one group shall require the consent of all parties concerned. In such a case the insolvency plan shall be accompanied by each party’s statement of consent

(3) Any agreement concluded by the insolvency administrator, the debtor or any other person and individual parties. providing for an advantage not envisaged under the plan in consideration of such parties’ conduct in votes or otherwise with respect to the insolvency proceedings shall be void.

Section 227: Debtor’s Liability

(1) If the insolvency plan does not provide otherwise the debtor shall be discharged of his residual obligations held by the creditors of the insolvency proceedings by the satisfaction of such creditors under the constructive part.

(2) If the debtor is a company without legal personality or a partnership limited by shares, subs. 1 shall apply mutatis mutandis to the partners’ personal liability.

Section 228: Modification of conditions under Property Law

If rights in objects are to be created, modified, transferred or waived, any legal declarations necessary from the parties involved may be included in the constructive part of the insolvency plan. If registered rights in real estate or in registered rights are involved, such rights shall be detailed in compliance with section 28 of the Land Register Code. The second sentence shall apply mutatis mutandis to rights registered in the register of ships and the register of ships under construction, or in the register of liens on aircraft.

Section 229: Survey of Assets. Earnings and Finance Plan

If it is envisaged that the creditors will be satisfied from the earnings derived from the debtor’s enterprise continued by the debtor or by a third party the insolvency plan shall be accompanied by a survey of assets listing the values of assets and obligations to be balanced should the plan become effective. In addition, the plan shall indicate the expenses and earnings to be expected during the period of the creditors’ satisfaction, and by which succession of earnings and expenses the liquidity of the enterprise will be maintained during such period.

Section 230: Further Attachments

(1) If the insolvency plan provides for the debtor to continue his enterprise, and if the debtor is an individual, the plan shall be accompanied by the debtor’s statement of willingness to continue the enterprise under the plan. If the debtor is a company without legal personality or a partnership limited by shares, the plan shall be accompanied by a similar statement by the partners with personal liability. The debtor’s statement under the first sentence shall not be required from a debtor submitting the plan himself.

(2) If it is envisaged that creditors will acquire shares, membership rights or interests in a corporation, an unincorporated association or in a company without legal personality, the plan shall be accompanied by the declaration of consent of each such creditor.

(3) If a third party has agreed to enter into obligations to the creditors if the plan is confirmed, the plan shall be accompanied by the statement of such third party.

Section 231: Refusal of the Plan

(1) The insolvency court shall refuse the insolvency plan ex officio

1. if the provisions governing the right to submit a plan and its contents are not complied with, and the submitting party is unable to correct such defect or does not correct it within a reasonable period of time fixed by the court;

2. if a plan submitted by the debtor obviously has no chance of being accepted by the creditors or confirmed by the court, or

3. if the claims provided for the parties under the constructive part of a plan submitted by the debtor obviously cannot be satisfied.

(2) If in the insolvency proceedings the debtor has already submitted a plan which has been refused by the creditors, not confirmed by the court or withdrawn by the debtor after publication of the date of the discussion meeting, the court shall refuse a new plan by the debtor if such refusal is requested by the insolvency administrator with the consent of the creditors’ committee, if appointed.

(3) The submitting party may bring an immediate appeal against the order refusing the plan.

Section 232: Comments on the Plan

(1) If the insolvency plan is not refused, the insolvency court shall forward it to the following for their comments:

1. the creditors’ committee, if appointed, the works council and the spokesmen of officers;

2. the debtor if the insolvency administrator submitted the plan, and

3. the administrator if the debtor submitted the plan.

(2) The court may also give an opportunity to the official representative body of industry, trade, the craft or of agriculture competent for the debtor or to other expert organisations to express their views.

(3) The court shall set the deadline for submission of the comments.

Section 233: Suspension of Disposition and Distribution

To the extent to which continued disposition and distribution of the assets involved in the insolvency proceedings would impair the implementation of an insolvency plan which has been submitted, the insolvency court at the request of debtor or the insolvency administrator shall order suspension of disposition and distribution. The court shall overrule or stop such suspension if it entails the risk of considerable disadvantage to the assets involved in the insolvency proceedings or if the administrator with the consent of the creditors’ committee or assembly requests continuation of disposition and distribution.

Section 234: Laying Out of the Plan

The insolvency plan with its attachments and any comments received shall be laid out for the parties’ inspection in the registry of the court.

Chapter Two: Acceptance and Confirmation of the Plan

Section 235: Discussion and Voting Meeting

(1) The insolvency court shall docket a meeting to discuss the insolvency plan and the voting rights of the creditors and subsequently to vote on the plan (discussion and voting meeting). Such meeting shall not be docketed later than one month.

(2) The date of the discussion and voting meeting shall be published. Publication shall indicate the availability of the plan and of any comments received for inspection in the registry of the court. Section 74 subs. 2 second sentence shall apply mutatis mutandis.

(3) Creditors of the insolvency proceedings who have filed claims, creditors entitled to separate satisfaction, the insolvency administrator, the debtor, the works council and the spokesmen of officers shall receive individual summons. A copy of the plan, to be provided at the request of the submitting party, or a summary of its essential contents, shall be sent with the summons.

Section 236: Coincidence with the Verification Meeting

The discussion and voting meeting may not be docketed prior to the verification meeting. Both meetings, however, may be docketed to coincide.

Section 237: Voting Right of the Creditors of the Insolvency Proceedings

(1) Section 77 subs. 1 first sentence, as well as subs. 2 and 3 No. 1, shall apply mutatis mutandis to the voting right of the creditors of the insolvency proceedings while voting on the insolvency plan. Creditors entitled to separate satisfaction may only vote as creditors of the insolvency proceedings if the debtor is personally liable to them and if they waive their right to separate satisfaction or are not satisfied under such right; as long as their non-satisfaction has not been determined, they shall be taken into account with the probable value of their non-satisfaction.

(2) Creditors whose claims are not impaired by the plan shall have no voting right.

Section 238: Voting Right of Creditors Entitled to Separate Satisfaction

(1) If the legal status of creditors entitled to separate satisfaction is covered in the insolvency plan, the rights of such individual creditors shall be discussed at the meeting. A voting right shall be vested in rights to separate satisfaction denied by neither the insolvency administrator, the creditors entitled to separate satisfaction nor the creditors of the insolvency proceedings. Sections 41 and 77 subs. 2, as well as 3 No. 1 shall apply mutatis mutandis to the voting right of denied, suspended or immature rights.

(2) Section 237 subs. 2 shall apply mutatis mutandis.

Section 239: Voting List

The registrar of the court registry shall record in a list the voting rights of creditors resulting from the meeting.

Section 240: Modification of the Plan

The submitting party shall be entitled to modify the contents of individual provisions of the insolvency plan in accordance with the results of the discussion meeting. A vote may be taken at the same meeting on the modified plan.

Section 241: Separate Voting Meeting

(1) The insolvency court may docket a separate meeting for the vote on the insolvency plan. In this case, the period of time between the discussion meeting and the voting meeting shall not extend beyond one month.

(2) The creditors with voting rights and the debtor shall be summoned to the voting meeting. If the plan has been modified, such modification shall be specifically indicated.

Section 242: Voting in Writing

(1) If a separate voting meeting is docketed, the voting right may be exercised in writing.

(2) The insolvency court shall send the voting slip to the creditors with voting rights after the discussion meeting while informing them of their voting right. Voting in writing shall not be counted unless received by the court not later than one day prior to the voting meeting; this shall be referred to when the voting slip is forwarded.

Section 243: Voting by Groups

Each group of creditors with voting rights shall vote on the insolvency plan separately.

Section 244: Necessary Majorities

(1) Acceptance of the insolvency plan by the creditors shall require that, in each group,

1. the majority of creditors with voting rights backs the plan, and

2. the sum of claims held by creditors backing the plan exceeds half of the sum of claims held by the creditors with voting rights.

(2) Creditors who hold a right jointly or whose rights constituted a uniform right until the reason to open insolvency proceedings came into effect shall be counted as one creditor in the vote. The same shall apply if a right is the object of a pledge or a usufruct.

Section 245: Prohibition to Obstruct

(1) Even if the necessary majorities have not been achieved, a voting group shall be deemed to have consented if

1. the creditors forming such group presumably suffer no loss by the insolvency plan compared with their situation without such plan,

2. the creditors forming such group participate to a reasonable extent in the economic value devolving on the parties under the plan, and

3. the majority of the voting groups have backed the plan with the necessary majorities.

(2) A reasonable participation of the creditors forming a group for the purpose of subs. 1 No. 2 shall exist if under the plan

1. no other creditor will receive economic values exceeding the full amount of his claim;

2. neither a creditor with a lower-ranking claim to satisfaction without a plan, compared with the creditors forming his group, nor the debtor nor a person holding the debtor’s shares receives an economic value, and

3. no creditor to be satisfied on an equal footing with the creditors forming his group without a plan receives an advantage with respect to such creditors.

Section 246: Consent of Lower-ranking Creditors of the Insolvency Proceeding

The following supplemental provisions shall apply to acceptance of the insolvency plan by the lower-ranking creditors of the insolvency proceedings:

1. The groups ranking as mentioned at section 39 subs. 1 No. 1 or 2 shall be deemed to have given their consent if the relevant claims to interest or costs are waived under the plan or are deemed to be waived under section 225 subs. 1, and if even the main claims of the creditors of the insolvency proceedings in respect of their principal amounts cannot be satisfied to the full under the plan.

2. The consent of the groups ranking behind section 39 subs. 1 No. 3 shall be deemed to have been given if none of the creditors of the insolvency proceedings receives an advantage under the plan compared with the creditors forming such groups.

3. If none of the creditors forming a group votes at all, the consent of this group shall be deemed to have been given.

Section 247: Debtor’s Consent

(1) The debtor’s consent to the plan shall be deemed to have been given if he does not oppose the plan in writing or for the records of the registry of the court at the latest in the voting meeting.

(2) An opposing opinion under subs. 1 shall be deemed to be irrelevant if

1. the debtor is presumably not placed at a disadvantage by the plan compared with his situation without a plan, and

2. no creditor receives an economic value exceeding the full amount of his claim.

Section 248: Confirmation by the Court

(1) After acceptance of the insolvency plan by the creditors (sections 244 to 246) and after obtaining the debtor’s consent the plan shall require confirmation by the insolvency court.

(2) Before the court takes its decision confirming the plan it shall hear the insolvency administrator, the creditors’ committee, if appointed, and the debtor.

Section 249: Conditioned Plan

If the insolvency plan provides for the performance of specific contributions or for the implementation of other measures before confirmation the plan may not be confirmed unless such conditions are met. Confirmation shall be refused ex officio if such conditions are not met even after expiry of an adequate period of time fixed by the insolvency court.

Section 250: Contravention of Procedural Provisions

Confirmation shall be refused ex officio if

1. the provisions governing the contents and the procedural handling of the insolvency plan, as well as its acceptance by the consent of the creditors and of the debtor, were not complied with regarding an essential aspect and such defect cannot be corrected, or

2. acceptance of the plan has been effected by improper means, in particular by an advantage favouring one creditor.

Section 251: Protection of Minorities

(1) At the request of a creditor, confirmation of the insolvency plan shall be refused if the creditor

1. opposed the plan in writing or for the records of the registry of the court at the latest in the voting meeting, and

2. is presumably placed at a disadvantage by the plan compared with his situation without a plan.

(2) Such request shall be admissible only if the creditor shows to the satisfaction of the court that he is placed at a disadvantage under the plan.

Section 252: Publication of Decision

(1) The order confirming the insolvency plan or refusing its confirmation shall be announced at the voting meeting or at a special meeting to be docketed as soon as possible. Section 74 subs. 2 second sentence shall apply mutatis mutandis.

(2) If the plan is confirmed, a copy of the plan or a summary of its essential contents shall be communicated to those creditors of the insolvency proceedings who have filed claims and to creditors entitled to separate satisfaction with reference to its confirmation.

Section 253: Appeal

The creditors and the debtor may bring an immediate appeal against the order confirming the insolvency plan or refusing its confirmation.

Chapter Three: Effects of the Confirmed Plan. Surveillance of Implementation of the Plan

Section 254: General Effects of the Plan

(1) As soon as the order confirming the insolvency plan becomes final its effects under the constructive part shall become binding upon all the parties involved. If the constructive part is to create, modify, transfer or waive rights in objects or if shares in a company with limited liability are to be transferred, the declarations of intent on the part of the parties involved which are included in the plan shall be deemed to have been given in the form required by law. The same shall apply to the undertakings included in the plan on which the creation, modification, transfer or waiving of rights in objects or transfer of shares is based. The first and second sentences shall also apply to creditors of the insolvency proceedings who have not filed their claims, and to parties opposing the plan.

(2) The plan shall leave unaffected the rights entitling the creditors of the insolvency proceedings against the debtor’s co-obligors and guarantors as well as the rights of such creditors to objects not forming part of the assets involved in the insolvency proceedings or deriving from a priority notice covering such objects. The debtor, however, shall be discharged by the plan of his co-obligor’s, guarantor’s or any other redressing party’s claims against himself in the same way as he is discharged of the claims of the creditors of the insolvency proceedings.

(3) If a creditor has received better satisfaction than warranted under the plan, he shall not be held liable to restitution.

Section 255: Proviso of Revival

(1) If the claims held by creditors of the insolvency proceedings were suspended or partly waived on the basis of the constructive part of the insolvency plan such suspension or waiver shall be no longer binding upon a creditor on whose claims the debtor defaults to a considerable extent in performance of the plan. Such default to a considerable extent shall be construed only if the debtor has not paid a mature debt although reminded by the creditor in writing with a period of grace of at least two weeks.

(2) If new insolvency proceedings are opened for the debtor’s assets before the plan has been performed to the full, a suspension or waiver shall be no longer binding upon any of the creditors of the insolvency proceedings.

(3) The plan may provide otherwise. However, the plan may not derogate from subs. 1 to the detriment of the debtor.

Section 256: Denied Claims. Remaining claims

(1) If a claim has been denied at the verification meeting or if the amount of the remaining claim held by a creditor entitled to separate satisfaction has not yet been determined, default on performing the insolvency plan for the purpose of section 255 subs. 1 shall not be construed if the debtor takes into account the claim until final determination of its amount to the extent corresponding to the decision of the insolvency court on the voting right of such creditor upon the vote on the plan. If the court has not decided on the voting right, at the request of the debtor or of the creditor it shall subsequently determine the extent to which the debtor has to provisionally take such claim into account.

(2) If such final determination shows the debtor falling short in his payments he shall pay the arrears. Default to a considerable extent in performance of the plan shall be construed only if the debtor omits to pay the arrears although reminded by the creditor in writing with a period of grace of at least two weeks.

(3) If such final determination shows the debtor overpaying he may claim restitution of the overpaid amount only to the extent exceeding even the immature item of the claim of the creditor under the insolvency plan.

Section 257: Execution under the Plan

(1) Creditors of the insolvency proceedings with determined claims which were not denied by the debtor at the verification meeting may execute under a confirmed and final insolvency plan in connection with entry in the schedule against the debtor as under a judgment declared executable. A claim in respect of which an objection has been raised and overruled shall be deemed equivalent to a claim which has not been denied. Section 202 shall apply mutatis mutandis.

(2) The same shall apply to execution against a third party which, by a written statement submitted to the insolvency court without reserving the beneficium excussionis, have undertaken responsibility together with the debtor for performance of the plan by the latter.

(3) If a creditor invokes his rights in the case of considerable default on the part of the debtor in respect of performance of the plan, he shall show to the satisfaction of the court the reminder and the expiry of the period of grace, but must prove no other facts constituting the default on the part of the debtor in order to receive an execution clause for such rights and to initiate such execution.

Section 258: Termination of the Insolvency Proceedings

(1) As soon as confirmation of the insolvency plan has become final, the insolvency court shall decide on termination of the insolvency proceedings.

(2) Prior to termination the administrator shall settle those claims on the assets involved in the insolvency proceedings which have not been denied and provide securities for denied claims.

(3) Such decision and the reason for termination shall be published. The debtor, the insolvency administrator and the members of the creditors’ committee shall be informed in advance of the date when termination will become effective (section 9 subs. 1 third sentence). Section 200 subs. 2 second and third sentences shall apply mutatis mutandis.

Section 259: Effects of Termination

(1) The offices of the insolvency administrator and of the members of the creditors’ committee shall expire upon termination of the insolvency proceedings. The right of unhindered disposition of the assets involved in the insolvency proceedings shall be transferred back to the debtor.

(2) The provisions governing surveillance of the implementation of the plan shall remain unaffected.

(3) An action brought in the insolvency proceedings to contest the debtor’s transactions maybe continued by the administrator even after termination of the proceedings if provided for in the constructive part of the plan. In such a case the action will be carried on for the debtor’s account unless the plan provides otherwise.

Section 260: Surveillance of Implementation of the Plan

(1) The constructive part of the insolvency plan may provide for surveillance of implementation of the plan.

(2) In the case of subs. 1, subsequent to termination of the insolvency proceedings the performance of the claims of the creditors under the constructive part against the debtor shall be monitored.

(3) If the constructive part provides for such situation, surveillance shall include performance of the claims of the creditors under the constructive part against corporations or companies without legal personality established after the opening of the insolvency proceedings in order to take over or continue the debtor’s enterprise or plant (takeover company).

Section 261: Tasks and Rights of the Insolvency Administrator

(1) Surveillance shall be incumbent on the insolvency administrator. The offices of the administrator and of the members of the creditors’ committee as well as the supervision of the court shall continue for such purpose. Section 22 subs. 3 shall apply mutatis mutandis.

(2) During the period of surveillance the administrator shall each year report to the creditors’ committee, if appointed, and to the court on the progress and further expectations of performance of the insolvency plan. Such reporting obligation shall leave unaffected the right of the creditors’ committee and of the court to demand specific information or an intermediate report at any time.

Section 262: Obligation to Disclosure incumbent on the Insolvency Administrator

If the insolvency administrator finds that claims monitored for performance are not met or cannot be met he shall disclose such failure to the creditors’ committee and to the insolvency court immediately. If no creditors’ committee has been appointed the administrator shall instead inform all creditors entitled against the debtor or the takeover company under the constructive part of the insolvency plan.

Section 263: Transactions Requiring Consent

The constructive part of the insolvency plan may provide that specific transactions of the debtor or of the takeover company shall require the consent of the insolvency administrator during the period of surveillance in order to become effective. Sections 81 subs. 1 and 82 shall apply mutatis mutandis.

Section 264: Loan Ceiling

(1) The constructive part of the insolvency plan may provide for lower-ranking status for the creditors of the insolvency proceedings compared with creditors with entitlements deriving from loans or other credits entered into by the debtor or the takeover company during the period of surveillance or held open by a creditor of the assets involved in the insolvency proceedings to extend into the period of surveillance. In such a case the maximum amount of such loans shall also be fixed (loan ceiling). It may not exceed the value of property listed in the survey of assets contained in the plan (section 229 first sentence).

(2) The creditors of the insolvency proceedings shall rank lower under subs. 1 only in comparison with creditors entering into an agreement that and to which amount the main claim, interest and costs of the loans granted by them are under the loan ceiling, and receiving confirmation of such agreement in writing from the insolvency administrator.

(3) Section 39 subs. 1 No. 5 shall remain unaffected.

Section 265: Lower-ranking Status of New Creditors

Creditors with other contractual claims created during the period of surveillance shall also have a lower-ranking status in comparison with creditors with entitlements deriving from loans entered into or held open under section 264. Claims created under a continuing obligation prior to surveillance shall also be deemed to constitute such claims for the time after the first date on which the creditor could terminate such contract after surveillance began.

Section 266: Consideration of Lower-ranking Status

(1) Lower-ranking status of the creditors of the insolvency proceedings and of the creditors mentioned at section 265 shall be taken into account only in insolvency proceedings opened before termination of surveillance.

(2) In any such new insolvency proceedings such creditors shall take priority over any other lower-ranking creditors.

Section 267: Publication of Surveillance

(1) If performance of the insolvency plan is to be monitored, this shall be published together with the order terminating the insolvency proceedings.

(2) Publication shall also cover:

1. in the case of section 260 subs. 3 any extension of such surveillance to the takeover company;

2. in the case of section 263 the criteria of transactions requiring the consent of the insolvency administrator;

3. in the case of section 264 the amount of a loan ceiling.

(3) Section 31 shall apply mutatis mutandis. If in the case of section 263 the right to transfer a real estate, a registered ship, a ship under construction or an aircraft, a right in any such object or a right in such a right is subject to’ restriction, sections 32 and 33 shall apply mutatis mutandis.

Section 268: Termination of Surveillance

(1) The insolvency court shall decide on termination of surveillance if

1. the claims monitored for satisfaction have been met or their satisfaction is ensured, or

2. three years have expired since termination of the insolvency proceedings and the opening of new insolvency proceedings has not been requested.

(2) Such decision shall be published. Section 267 subs. 3 shall apply mutatis mutandis.

Section 269: Costs of Surveillance

The cost of surveillance shall be borne by the debtor. In the case of section 260 subs. 3 the takeover company shall bear any costs incurred for its surveillance.

Part Seven: Personal Management

Section 270: Prerequisites

(1) The debtor may manage and dispose of the assets involved in insolvency proceedings under surveillance by a custodian if the insolvency court orders such personal management while deciding on the opening of the insolvency proceedings. Such proceedings shall be subject to the general provisions unless this part provides otherwise.

(2) The order shall require

1. the debtor’s request,

2. if a creditor has requested the opening of insolvency proceedings, the consent of the creditor to the debtor’s request, and

3. that in accordance with the circumstances it is to be expected that the order will not lead to a delay in the proceedings or other disadvantages to the creditors.

(3) In the case of subs. 1, a custodian shall be appointed instead of an insolvency administrator. The claims of the creditors of the insolvency proceedings shall be filed with the custodian. Sections 32 and 33 shall not apply.

Section 271: Subsequent Order

If the debtor’s request for personal management has been refused by the insolvency court, but the debtor’s personal management is requested by the first creditors’ assembly, the court shall order such personal management. The former insolvency administrator may be appointed custodian.

Section 272: Repeal of the Order

(1) The insolvency court shall repeal its decision ordering personal management if requested by

1. the creditors’ assembly;

2. a creditor with a right to separate satisfaction or by a creditor of the insolvency proceedings, and if the prerequisite under section 270 subs. 2 No. 3 has been removed;

3. by the debtor.

(2) A creditor’s request shall be only admissible if he shows the removal of such prerequisite to the satisfaction of the court. Before deciding on the request, the insolvency court shall hear the debtor. The creditor and the debtor may bring an immediate appeal against the decision of the court.

(3) The former custodian may be appointed as insolvency administrator.

Section 273: ublication

The decision of the insolvency court ordering the debtor’s personal management after the opening of insolvency proceedings, or repealing such order, shall be published.

Section 274: Legal Status of the Custodian

(1) Sections 54 No. 2, as well as 56 to 60 and 62 to 65 shall apply mutatis mutandis to the custodian’s appointment, supervision by the insolvency court, as well as to liability and remuneration.

(2) The custodian shall verify the debtor’s economic situation and monitor the management of his business and expenses for his livelihood. Section 22 subs. 3 shall apply mutatis mutandis.

(3) If the custodian finds circumstances suggesting disadvantages to the creditors under the debtor’s continued personal management he shall disclose such circumstances to the creditors’ committee and to the insolvency court immediately. If no creditors’ committee has been appointed the custodian shall instead inform the creditors of the insolvency proceedings who have filed claims, as well as the creditors with a right to separate satisfaction.

Section 275: Consent of the Custodian

(1) No obligations exceeding the range of his ordinary business may be entered into by the debtor without the custodian’s consent. The debtor may even not enter into obligations falling under the range of his ordinary business if the custodian objects to such obligations.

(2) The custodian may require the debtor to allow collection of all payments received only by the custodian and payments to be made by the custodian only.

Section 276: Consent of the Creditors’ Committee

The debtor shall obtain the consent of the creditors’ committee for transactions of particular importance to the insolvency proceedings. Section 160 subs. 1 second sentence, subs. 2., section 161 second sentence and section 164 shall apply mutatis mutandis.

Section 277: Ordering the Requirement of Consent

(1) At the request of the creditors’ assembly the insolvency court shall order the requirement of the custodian’s consent for certain transactions by the debtor to become legally effective. Section 81 subs. 1 and the second and third sentences, as well as section 82, shall apply mutatis mutandis. If the custodian consents to a transaction giving rise to an obligation incumbent on the assets involved in the insolvency proceedings, section 61 shall apply mutatis mutandis.

(2) Such order may also be issued at the request of a creditor with a right to separate satisfaction or of a creditor of the insolvency proceedings if it is urgently necessary in order to prevent disadvantages to the creditors. The admissibility of such a request shall require that the requesting party shows such prerequisite for the order to the satisfaction of the court.

(3) Such order shall be published. Section 31 shall apply mutatis mutandis. If the right to transfer real property, a registered ship, a ship under construction or an aircraft, a right in such an object or a right in such a right is subjected to the requirement of consent, sections 32 and 33 shall apply mutatis mutandis.

Section 278: Funds for the Debtor’s Livelihood

(1) The debtor may draw funds for himself and the family members mentioned in section 100 subs. 2 second sentence from the assets involved in the insolvency proceedings permitting the debtor a modest livelihood with respect to his former living conditions.

(2) If the debtor is not an individual, subs. 1 shall apply mutatis mutandis to the debtor’s partners with personal liability entitled to represent him.

Section 279: Mutual Contracts

The provisions governing the performance of transactions and the cooperation of the works council (sections 103 to 128) shall apply with the proviso that the insolvency administrator be replaced by the debtor. The debtor shall exercise his rights under such provisions with the concurrence of the custodian. The exercise of the rights under sections 120, 122 and 126 shall require the custodian’s consent to become legally effective.

Section 280: Liability. Contest of the Debtor’s Transactions in Insolvency Proceedings

Only the custodian may claim any liability to the credit of the assets involved in the insolvency proceedings under sections 92 to 93 and contest the debtor’s transactions under sections 129 to 147.

Section 281: Notification of Creditors

(1) The debtor shall establish the record of the assets involved in the insolvency proceedings, the record of creditors and the survey of property (sections 151 to 153). The custodian shall verify such records and survey and give a written statement for each as to whether the result of his verification gives rise to objections.

(2) During the report meeting the debtor shall give the report. The custodian shall comment on the report.

(3) Accounting (sections 66 and 155) shall be incumbent on the debtor. Subs. 1 second sentence shall apply mutatis mutandis to the debtor’s final accounts.

Section 282: Disposition of Securities

(1) The insolvency administrator’s right to dispose of objects subject to rights to separate satisfaction shall be vested in the debtor. However, costs for the determination of such objects and of the rights to such objects shall not be charged. Only the costs actually incurred for disposition and the amount of turnover tax may be counted as costs of disposition.

(2) The debtor shall exercise his right to disposition with the concurrence of the custodian.

Section 283: atisfaction of the Creditors of the Insolvency Proceedings

(1) In examining claims, in addition to the creditors of the insolvency proceedings the debtor and the custodian may deny claims which have been filed. A claim denied by a creditor of the insolvency proceedings, by the debtor or by the custodian shall be deemed not determined.

(2) Distributions shall be effected by the debtor. The custodian shall verify each distribution record and give a written statement for each record as to whether the result of his verification gives rise to objections.

Section 284: Insolvency Plan

(1) Any charge on the part of the creditors’ assembly to establish an insolvency plan shall be directed to the custodian or the debtor. If the charge is directed to the debtor, the custodian shall serve as advisor.

(2) Surveillance of implementation of the plan shall be incumbent on the custodian.

Section 285: Lacking Assets Involved in the Insolvency Proceedings

The custodian shall inform the insolvency court of lacking assets involved in the insolvency proceedings.

Part Eight: Discharge of Residual Debt

Section 286: Policy

If the debtor is an individual he shall be discharged under sections 287 to 303 of his obligations not performed by way of the insolvency proceedings and due to the creditors of the insolvency proceedings.

Section 287: Debtor’s Request

(1) Discharge of residual debt shall require a request on the part of the debtor, which should be joined with his request to open the insolvency proceedings. If it is not joined with the latter, it shall be submitted within two weeks of the reference in accordance with section 20 subs. 2.

(2) Such request shall be accompanied by a statement assigning the debtor’s garnishable claims to emoluments due to him under a service relationship or to emoluments replacing them to a trustee to be appointed by the court for a period of six years following opening of the insolvency proceedings. If the debtor had assigned or pledged such claims to a third party already prior to his request he shall indicate such assignment or pledge in his statement.

(3) Agreements excluding, making dependent on a condition, or otherwise restricting the assignment of claims on the part of the debtor to payments resulting from a service relationship or current payments in lieu shall be ineffective insofar as they would obstruct or be detrimental to the declaration of assignment pursuant to subs. 2 first sentence.

Section 288: Right of Proposal

The debtor and the creditors may propose to the insolvency court as trustee an individual suited to the individual case at hand.

Section 289: Decision by the Insolvency Court

(1) At the debtor’s request, the creditors of the insolvency proceedings and the insolvency administrator shall be heard at the final meeting. The insolvency court shall decide by order at the debtor’s request.

(2) Against such an order an immediate appeal shall be available to the debtor and any creditor of the insolvency proceedings requesting refusal of the discharge of residual debt at the final meeting. The insolvency proceedings shall not be terminated before the order has become final. The final order shall be published together with the order terminating the insolvency proceedings.

(3) If the insolvency proceedings are discontinued, discharge of residual debt may only be granted if, after the notification of lacking assets involved in the insolvency proceedings pursuant to section 209, the assets involved in the insolvency proceedings have been distributed and the proceedings are discontinued pursuant to section 211. Subs. 2 shall apply with the proviso that discontinuation shall replace termination of the proceedings.

Section 290: Refusal of Discharge of Residual Debt

(1) The order shall refuse discharge of residual debt if such refusal has been requested by a creditor of the insolvency proceedings at the final meeting and

1. if the debtor has received a final verdict for commission of a criminal offence under sections 283 to 283 c of the Criminal Code;

2. if the debtor by wanton act or gross negligence has given a false or incomplete statement on his economic condition in writing in the last three years prior to the request to open the insolvency proceedings or subsequent to this request in order to obtain a loan or grants from public funds or to avoid making payments to public funds;

3. if the debtor has obtained discharge of residual debt in the last ten years prior to the request to open the insolvency proceedings or subsequent to this request, or if such request has been refused pursuant to section 296 or 297;

4. the debtor by wanton act or gross negligence has impaired the satisfaction of the creditors of the insolvency proceedings in the last year prior to the request to open insolvency proceedings, or subsequent to this request, by entering into inappropriate obligations, by wasting property or by delaying the opening of the insolvency proceedings without any expectancy of an improved economic condition;

5. if the debtor by wanton act or gross negligence has infringed the obligations of disclosure or cooperation under this statute during the insolvency proceedings; or

6. if in the lists of his property, income, creditors and claims against him, which are to be submitted pursuant to section 305 subs. 1 No. 3, the debtor has by wanton act or gross negligence made false or incomplete statements.

(2) A creditor’s request of refusal shall be admissible only if a reason why a discharge of residual debt should be refused is shown to the satisfaction of the court.

Section 291: Notification of Discharge of Residual Debt

(1) Unless any of the conditions mentioned at section 290 exist, the court shall state in its order that the debtor will achieve discharge of his residual debt if he meets his obligations under section 295 and the preconditions for refusal pursuant to sections 297 or 298 do not pertain.

(2) In such same order the court shall appoint the trustee in whom the debtor’s garnishable emoluments will be vested in accordance with the latter’s statement of assignment (Section 287 subs. 2).

Section 292: Legal Status of Trustee

(1) The trustee must bring the assignment to the notice of the person obliged to pay the emoluments, insofar as the costs of the proceedings which have been deferred in accordance with section 4a have been corrected by deducting the cost of appointing counsel. He must keep separate the amounts received under such assignment and any other payments contributed by the debtor or third parties from his own property and distribute them annually to the creditors of the insolvency proceedings as directed by the final record. Section 36 subs. 1 second sentence and subs. 4 shall apply mutatis mutandis. From the sums which he receives from the assignment, as well as from the other payments, he shall pay the debtor on expiry of a period of four years from termination of the insolvency proceedings ten percent, and on expiry of a period of five years from termination, fifteen percent. If the costs of the proceedings deferred in accordance with section 4a have not yet been corrected, money shall only be transferred to the debtor if his income does not exceed the amount calculated in accordance with section 115 subs. 1 of the Code of Civil Procedure.

(2) The creditor’s assembly may also charge the trustee with surveillance of the debtor meeting his obligations. In such a case the trustee shall inform the creditors immediately upon determining an infringement of such obligations. The trustee shall only be obliged to carry out surveillance if the additional payment for this is either covered or advanced.

(3) The trustee shall render account to the insolvency court upon expiry of his office’ Sections 58 and 59 shall apply mutatis mutandis, whilst section 59 shall however apply with the proviso that any creditor of the insolvency proceedings may request dismissal of the insolvency administrator and any creditor of the insolvency proceedings may bring an immediate appeal.

Section 293: Trustee’ s Remuneration

(1) The trustee shall be entitled to remuneration in consideration of his activity and to reimbursement of appropriate expenses. Such remuneration shall take into account the time and scope of the trustee’s activity.

(2) Section 63 subs. 2 and sections 64 and 65 shall apply mutatis mutandis.

Section 294: Equal Treatment of Creditors

(1) Executions for individual creditors of the insolvency proceedings into the debtor’s property shall be prohibited during the period of the latters’ statement of assignment.

(2) Any agreement between the debtor or other persons and individual creditors of the insolvency proceedings providing for the latters’ advantage shall be void.

(3) Against the claim to emoluments covered by the statement of assignment the obligated person may set off only a claim against the debtor qualifying for set-off under Section 114 subs. 2 if the insolvency proceedings were continued.

Section 295: Obligations of the Debtor

(1) During the period of the statement of assignment the debtor shall be obliged to

1. engage in adequate gainful employment or seek such employment and not refuse any reasonable activity;

2. transfer to the trustee half the value of property acquired by him by way of succession or with respect to his future status as heir;

3. inform the insolvency court and the trustee immediately of any change of residence or place of employment, not conceal any emoluments covered by the statement of assignment or any property covered by No. 2. and disclose to the court and the trustee at their request his gainful employment or his efforts to find such employment as well as his emoluments and his property;

4. make payments to satisfy the creditors of the insolvency proceedings only to the trustee, and not provide an individual creditor with an advantage.

(2) If the debtor is self-employed he shall be obliged to satisfy the creditors of the insolvency proceedings by payments to the trustee as if he had entered into an adequate service contract.

Section 296: Contravention of Obligations

(1) At the request of a creditor of the insolvency proceedings the insolvency court shall refuse discharge of residual debt if the debtor contravenes any of his obligations during the period of the statement of assignment and thereby impairs satisfaction of the creditors of the insolvency proceedings; this shall not apply to debtors without faulty conduct. Such request may be filed only within one year of the date when the creditor became aware of the contravention of an obligation. It shall be admissible only if the facts mentioned in the first and second sentences are shown to the satisfaction of the court.

(2) Prior to its decision on the request, the court shall hear the trustee, the debtor and the creditors of the insolvency proceedings. The debtor shall provide information concerning fulfilment of his obligations and at the request of the creditor confirm the correctness of his disclosure by an affidavit. If without a reasonable excuse he does not provide the disclosure or the affidavit within the deadline set for him, or does not appear at a meeting docketed by the court for him to provide the information or the affidavit, although properly summoned and without giving a reasonable excuse, discharge of residual debt shall be refused.

(3) The requesting party and the debtor may bring an immediate appeal against the decision. Refusal of discharge of residual debt shall be published.

Section 297: Insolvency Offences

(1) At the request of a creditor in the insolvency proceedings, the insolvency court shall refuse discharge of residual debt if in the period between the final meeting and termination of the insolvency proceedings, or during the period of the statement of assignment the debtor received a final verdict for commission of a criminal offence under sections 283 to 283c of the Criminal Code.

(2) Section 296 subs. 1 second and third sentences and subs. 3 shall apply mutatis mutandis.

Section 298: Coverage of the Trustee’s Minimum Remuneration

(1) At the trustee’s request the insolvency court shall refuse discharge of residual debt if the amounts received by him for the preceding year of his effort do not cover minimum remuneration and if the debtor does not pay the uncovered amount although the trustee has requested the debtor’s payment in writing within a period of not less than two weeks indicating the possibility that the debtor’s discharge of residual debt may be refused. This shall not apply if the costs of the insolvency proceedings were deferred in accordance with Section 4a.

(2) The debtor shall be heard prior to the decision. The court shall not refuse discharge of residual debt if the debtor at the court’s request pays the uncovered amount to the trustee within two weeks or the amount is deferred in accordance with section 4a.

(3) Section 296 subs. 3 shall apply mutatis mutandis.

Section 299: Expiry before Date

If discharge of residual debt is refused under sections 296, 297 or 298, the period of the statement of assignment, the trustee’s office and any limitation of the creditors’ rights shall expire as soon as the decision of the court becomes final.

Section 300: Decision on Discharge of Residual Debt

(1) If the period of the statement of assignment has expired without expiry before date, the insolvency court shall decide by order on granting a discharge of residual debt, after hearing the creditors of the insolvency proceedings, the trustee and the debtor.

(2) At the request of a creditor of the insolvency proceedings, under the conditions mentioned at section 296 subs. 1, or subs. 2 third sentence, or section 297, or at the trustee’s request, the insolvency court shall refuse discharge of residual debt under the conditions mentioned at section 298.

(3) The order shall be published. Section 9 remaining unaffected, if the residual debt is discharged, excerpts are to be published in the Federal Gazette.

Section 301: Effect of Discharge of Residual Debt

(1) If a discharge of residual debt is granted it shall become binding upon all creditors of the insolvency proceedings. Such binding effect shall also apply to those creditors who have not filed their claims.

(2) The rights of the creditors of the insolvency proceedings against the debtor’s co-obligors and guarantors and their rights deriving from a registered priority notice securing them or from a right entitling them to separate satisfaction in insolvency proceedings shall remain unaffected by discharge of residual debt. The debtor, however, shall be discharged of claims of co-obligors, guarantors or any other redressing party against himself in the same way as he is discharged of the claims of the creditors of the insolvency proceedings.

(3) If a creditor without entitlement to satisfaction under discharge of residual debt is satisfied he shall not be held liable to restitution.

Section 302: Excepted Claims

The grant of discharge of residual debt shall leave unaffected:

1. obligations of the debtor incumbent on him under a tort committed by wanton act, insofar as the creditor had registered the corresponding claim in accordance with section 174 subs. 2, stating this legal reason;

2. the debtor’s fines as well as his obligations equal to such fines under section 39 subs. 1 No. 3;

3. liabilities from interest-free loans granted to the debtor to pay the costs of the insolvency proceedings.

Section 303: Retraction of Discharge of Residual Debt

(1) At the request of a creditor of the insolvency proceedings, the insolvency court shall retract the grant of discharge of residual debt if it is subsequently found that the debtor has infringed one of his obligations by wanton act and thereby impaired the satisfaction of the creditors of the insolvency proceedings to a considerable extent.

(2) Such request of a creditor shall be admissible only if it is filed within one year after the decision on granting discharge of residual debt became final and if the creditor shows to the satisfaction of the court that the prerequisites under subs. 1 exist and that he was not aware of such prerequisites before the decision of the court became final.

(3) The debtor and the trustee shall be heard prior to the decision. The requesting party and the debtor may bring immediate appeal against such decision. The decision retracting discharge of residual debt shall be published.

Part Nine: Consumer Insolvency Proceedings and other Minor Proceedings

Chapter One: Scope of Application

Section 304: Principle

(1) If the debtor is an individual who pursues or has pursued no independent economic activity, the general provisions shall apply to the proceedings insofar as nothing else is provided in this part. If the debtor has pursued independent economic activity, the first sentence shall apply if his assets are comprehensible and no claims exist against him from employment.

(2) The assets shall be comprehensible within the meaning of subs. 1 only if the debtor has fewer than 20 creditors at the time the request is made to open the insolvency proceedings.

Chapter Two: Plan for the Settlement of Debts

Section 305: Debtor’s Request to open Insolvency Proceedings

(1) With the application to be filed, the debtor shall submit the following with the request to open insolvency proceedings (section 311) or immediately subsequent to this request:

1. a certificate issued by a suitable person or agency from which emerges that within the last six months prior to the request to open insolvency proceedings an unsuccessful attempt has been made to settle out of court with the creditors on the basis of a plan; the plan shall be enclosed and the primary reasons for its failure shall be explained; the Länder may determine which persons or agencies are to be regarded as suitable;

2. the request for grant of discharge of residual debt (section 287), or the declaration that discharge of residual debt is not to be applied for;

3. a record of available assets and income (record of assets), a summary of the main content of this record (overview of the assets), a record of the creditors and a record of the claims against the debtor; the records and the overview of the assets shall also include a declaration that their contents are correct and complete;

4. a plan for the settlement of debts; this may contain all provisions which are suited to lead to an appropriate settlement of debts when account is taken of the interests of the creditors, as well as of the debtor’s assets, income and family circumstances; the plan shall include whether and to what extent sureties, pledges and other securities pertaining to the creditors are to be affected by the plan.

(2) The record of claims pursuant to subs. 1 No. 3, may also refer to enclosed statements of claims made by the creditors. At the request of the debtor, the creditors shall be obliged to provide the debtor with a written statement of their claims against him, at their expense, in order to aid him in preparing the record of claims; in particular, they shall state the extent of their claims and their categorisation in main claim, interest and costs. The request on the part of the debtor must include a reference to a request to open insolvency proceedings which has already been filed with a court, or the filing of which is intended in the near future.

(3) If the debtor has not submitted all the declarations and documents specified in subs. 1, the insolvency court shall request him to supply the missing parts immediately. If the debtor does not comply with this request within one month, his request to open insolvency proceedings shall be regarded as having been retracted. In cases falling under section 306 subs. 3 third sentence the period shall be three months.

(4) In the proceedings in accordance with this Chapter, the debtor may be represented before the insolvency court by a suitable person or by a member of an agency recognised as suitable within the meaning of subs. 1 No. 1. Section 157 subs. 1 of the Code of Civil Procedure shall not apply.

(5) In order to simplify the consumer insolvency proceedings, by virtue of a legal ordinance and with the approval of the Bundesrat, the Federal Ministry of Justice shall be entitled to introduce for the persons concerned forms for the certificates, applications, lists and plans to be submitted in accordance with subs. 1 Nos. 1 to 4. Where forms are introduced in accordance with the first sentence the debtor must use them. Different forms may be introduced for proceedings in courts that process the proceedings automatically, and for proceedings in courts that do not process the proceedings automatically.

Section 305a: Failure of Out-of-Court Debt Settlement

An attempt to reach an out-of-court agreement with the creditors regarding settlement of debts shall be considered to have failed if a creditor requests coercive execution after the negotiations regarding out-of-court settlement of debts have been initiated.

Section 306: Suspension of Proceedings

(1) The proceedings relating to the request to open insolvency proceedings shall be suspended until the decision is taken on the plan for the settlement of debts. This period shall not exceed three months. After hearing the debtor, the court shall order the continuation of the proceedings regarding the request to open proceedings if in accordance with his freely-formed conviction the debt settlement plan is likely not to be accepted.

(2) Subs. 1 shall not be a hindrance to the ordering of safeguards. If the proceedings are suspended, the debtor shall submit the number of duplicates of the debt settlement plan and of the record of assets required for service within two weeks of being called on to do so by the court. Section 305 subs. 3 second sentence shall apply mutatis mutandis.

(3) If a creditor requests opening of proceedings, the insolvency court shall give the debtor the opportunity prior to the decision on opening to also file a request. If the debtor files a request, subs. 1 shall also apply to the creditor’s request. In this case, the debtor shall initially attempt to reach an out-of-court agreement in accordance with section 305 subs. 1 No. 1.

Section 307: Service on the Creditors

(1) The insolvency court shall serve on the creditors named by the debtor the plan for the settlement of debts, as well as the overview of assets, and at the same time shall request the creditors to comment on the records specified in section 305 subs. 1 No. 3 and the plan for the settlement of debts within a deadline of one month; the creditors shall be informed that the records have been deposited at the insolvency court for viewing. At the same time, with express reference to the legal consequences of section 308 subs. 3 second sentence, each creditor shall be given the opportunity to examine the information on his claims in the record of claims, which has been deposited for viewing at the insolvency court within the period set in the first sentence and where necessary to make additions. Section 8 subs. 1 second and third sentences and subs. 2 and 3 shall not apply to service pursuant to the first sentence.

(2) If the comment of a creditor pursuant to subs. 1 first sentence does not arrive at the court within the deadline set, this shall be deemed as approval of the plan for the settlement of debts. This must be pointed out in the request for comment.

(3) Once the deadline set according to subs. 1 first sentence has expired, the debtor shall be given the opportunity to amend or make additions to the plan for the settlement of debts within a deadline to be set by the court, if this is necessary on the basis of the comments of one of the creditors or seems sensible in the interest of a mutually agreed settlement of debts. If necessary, the amendments or additions are to be served on the creditors. Subs. 1 first and third sentences and subs. 2 shall apply mutatis mutandis

Section 308: Acceptance of the Plan for the Settlement of Debts

(1) If no creditor has objected to the plan for the settlement of debts, or if agreement is replaced pursuant to section 309, the plan for the settlement of debts shall be deemed to be approved; the insolvency court shall determine this by means of an order. The plan for the settlement of debts shall have the effect of a settlement in the meaning of section 794 subs. 1 No. 1 of the Code of Civil Procedure. The creditors and the debtor shall be served with a copy of the plan for the settlement of debts and of the order mentioned in the first sentence.

(2) The requests to open insolvency proceedings and to grant discharge of residual debt shall be regarded as retracted.

(3) If claims are neither included in the debtor’s record nor subsequently taken into account when the plan for the settlement of debts is prepared, the creditors may demand that the debtor comply with these claims. This shall not apply to the extent that a creditor has not added to the information on his claim in the record of claims deposited for viewing at the insolvency court within the period set, in spite of the fact that the plan for the settlement of debts was sent to him and the claim had come into existence prior to expiry of the deadline; in this respect, the claim shall become void.

Section 309: Replacement of Approval

(1) If the plan for the settlement of debts has been approved by more than half the named creditors, and if the total of the claims of those creditors who have given approval amounts to more than half the claims of the named creditors, at the request of a creditor or of the debtor, the insolvency court shall replace the objections of a creditor to the plan for the settlement of debts with agreement. This shall not apply if

1. the creditor who has raised objections is not taken into account to an appropriate extent in relation to the other creditors, or

2. this creditor is presumably placed at an economic disadvantage by the plan for the settlement of debts in comparison to the implementation of the procedure for opening insolvency proceedings and discharge of residual debt; in cases of doubt, the income, assets and family circumstances of the debtor at the time of the request pursuant to the first sentence shall be taken as the basis during the whole period of the proceedings.

(2) The creditor shall be heard prior to the decision. He must show to the satisfaction of the court the reasons which pursuant to subs. 1 second sentence stand in the way of replacement of his objections by approval. The party making the request and the creditor whose agreement is being replaced may bring immediate appeal. Section 4a subs. 2 shall apply mutatis mutandis.

(3) If the creditor shows to the satisfaction of the court facts giving rise to serious doubts as to whether a claim stated by the debtor exists or comes to an amount which is higher or lower than that stated, and if the outcome of the dispute is decisive in respect of whether the creditor is suitably taken into account in comparison to the other creditors (subs. 1 second sentence No. 1), approval of this creditor may not be replaced.

Section 310: Costs

The creditors shall have no claim on the debtor for defrayal of the costs incurred by them in connection with the plan for the settlement of debts.

Chapter Three: Simplified Insolvency Proceedings

Section 311: Initiation of the Proceedings concerning Opening of the Insolvency Proceedings

If objections are raised to the plan for the settlement of debts which are not replaced by court approval pursuant to section 309, the proceedings concerning opening of insolvency proceedings shall be reopened ex officio.

Section 312: General Procedural Simplifications

(1) Public announcements shall be effected by means of excerpts; section 9 subs. 2 shall not apply. When the insolvency proceedings are opened, in contrast to what applies at section 29, only the verification meeting shall be docketed. If the proceedings are opened at the request of the debtor, the period named in section 88 shall be three months.

(2) If the debtor’s assets can be clearly seen, and the number of creditors or the extent of the obligations is low, the insolvency court may order that the proceedings or individual parts thereof be carried out in writing. It may rescind or amend this order at any time.

(3) The provisions concerning the insolvency plan (sections 217 to 269) and on personal management (sections 270 to 285) shall not apply.

Section 313: Trustee

(1) The duties of the insolvency administrator shall be assumed by the trustee (section 292). In contrast to section 291 subs. 2, the latter shall be nominated when the insolvency proceedings are opened. Sections 56 to 66 shall apply mutatis mutandis.

(2) It is not the trustee who is entitled to contest transactions pursuant to sections 129 to 147 but every creditor of the insolvency proceedings. The costs incurred by the creditor are to be refunded first from the proceeds. The creditors’ assembly may commission the trustee or a creditor to contest. If the creditors’ assembly has commissioned a creditor to contest the transaction, any costs incurred by him shall be refunded out of the assets involved in the insolvency proceedings if they cannot be covered from the proceeds.

(3) The trustee shall not be entitled to dispose of chattels in respect of which there are pledges or other special rights. The creditor shall have the right of disposition. Section 173 < subs. 2 shall apply mutatis mutandis.

Section 314: Simplified Distribution

(1) At the request of the trustee, the insolvency court shall order waiver of disposition of the assets involved in the insolvency proceedings, either in whole or in part. In this case, it shall also instruct the debtor to pay a sum to the trustee within a period set by the court in accordance with the value of the assets which would have had to be distributed to the creditors of the insolvency proceedings. The order shall not be given if disposition of the assets involved in the insolvency proceedings appears to be necessary, particularly in the interest of the creditors.

(2) The creditors of the insolvency proceedings shall be heard prior to the decision.

(3) The decision on a request on the part of the debtor for discharge of residual debt to be granted (sections 289 to 291) shall not be taken until expiry of the deadline set pursuant to subs. 1 second sentence. At the request of one of the creditors of the insolvency proceedings, the court shall refuse to grant discharge of residual debt if the amount payable pursuant to subs. 1 second sentence has not been paid even subsequent to expiry of a further deadline of two weeks set by the court with reference to the possibility of refusing to grant discharge of residual debt. The debtor shall be heard prior to a decision being taken.

Part Ten: Special Types of Insolvency Proceeding

Chapter One: Insolvency Proceedings of a Decedent’s Estate

Section 315: Local Jurisdiction

The insolvency court in whose district a decedent had his usual place of abode shall have exclusive local jurisdiction for the insolvency proceedings to be opened for his estate. If the decedent had the centre of his self-employed business activity in a different place the insolvency court in whose district such place is located shall have exclusive jurisdiction.

Section 316: Admissibility of the Opening of Insolvency Proceedings

(1) The opening of the insolvency proceedings shall not be barred by the fact that the heir has not yet accepted devolution of the estate on himself or that he is subject to unlimited liability for the obligations incumbent on the estate.

(2) If there are several heirs, the insolvency proceedings may also be opened subsequent to division of the estate.

(3) There shall be no insolvency proceedings in respect of a portion of an estate.

Section 317: Persons Entitled to Request the Opening of Proceedings

(1) The opening of the insolvency proceedings relating to a decedent’s estate may be requested by any heir, by the administrator of the estate or by any other guardian. by an executor entitled to manage the estate and by any creditor of the estate.

(2) If the request is not made by all heirs, it shall be admissible if the reason to open the insolvency proceedings is shown to the satisfaction of the court. The insolvency court shall hear the other heirs.

(3) If the administration of the estate is incumbent on an executor, the insolvency court shall hear the executor if the heir has made the request, and the heir, if the executor has made the request, respectively.

Section 318: Entitlement to make a Request for the Joint Marital Property

(1) If the estate forms part of the joint marital property of a community the spouse who is the heir and the other spouse who is not the heir, but who administers the joint marital property alone or together with the other spouse, may request the opening of the insolvency proceedings relating to such estate. The consent of the other spouse shall not be required. The spouses shall retain the right to make a request even if the community is terminated.

(2) If the request is not brought by both spouses, it shall be admissible if a reason to open insolvency proceedings is shown to the satisfaction of the court. The insolvency court shall hear the dissenting spouse.

Section 319: Request Deadline

The request of a creditor of the estate to open the insolvency proceedings shall be not admissible if a period of two years has expired after the heir accepted devolution of the estate on himself.

Section 320: Reasons for Opening

The estate’s illiquidity and overindebtedness shall be reasons to open the insolvency proceedings. If the opening of the insolvency proceedings is requested by the heir, by the administrator of the estate, by a guardian or by an executor, imminent illiquidity shall also be a reason to open the insolvency proceedings.

Section 321: Execution following Succession

Measures of execution against the estate which were effected following succession shall not entitle a creditor to separate satisfaction.

Section 322: Contestable Transactions on the part of the Heir

If the heir has satisfied claims of descendants to a compulsory portion, legacies or bequests prior to the opening of the insolvency proceedings such transaction may be contested in the same manner as a gratuitous benefit granted by the heir.

Section 323: The Heir’s Expenses

The heir may not withhold satisfaction of any obligations incumbent on him because of the expenses which are to be reimbursed to him from the estate in accordance with sections 1978 and 1979 of the Civil Code.

Section 324: Debts incumbent on the Assets Involved in the Insolvency Proceedings

(1) In addition to the debts mentioned at sections 54 and 55 the following debts shall be deemed as debts incumbent on the assets involved in the insolvency proceedings:

1. expenses to be reimbursed to the heir from the estate in accordance with sections 1978 and 1979 of the Civil Code;

2. the costs of the decedent’s funeral;

3. costs incumbent on the estate incurred for the proceedings to have the decedent’s death declared;

4. costs incurred for the disclosure of the decedent’s will, for the estate’s judicial arrestment, for the guardianship of such estate, for the offer to the creditors of the estate to file their claims and for the establishment of an inventory;

5. obligations under transactions made by the estate’s guardian or by an executor;

6. obligations incurred in the management of the estate by its guardian, by an executor or by an heir who has not accepted the devolution of the estate on himself incumbent on the heir to the extent that such obligations would be incumbent on the creditors of the estate upon the designated persons’ management of affairs on their behalf.

(2) In the case of lacking assets involved in the insolvency proceedings the obligations mentioned at subs. 1 shall have the rank specified under section 209 subs. 1 No. 3.

Section 325: Obligations incumbent on the Estate

In insolvency proceedings opened for an estate only the obligations incumbent on the estate may be claimed.

Section 326: The Heirs’ Claims

(1) The heir may claim his rights entitling him against the decedent.

(2) If the heir has performed an obligation incumbent on the estate, and if his performance is not deemed as having been made for the account of the estate under section 1979 of the Civil Code, he shall replace the creditor unless he is subject to unlimited liability to the obligations incumbent on the estate.

(3) If the heir has unlimited liability to an individual creditor, he may claim the creditor’s right if the creditor does not claim it.

Section 327: Lower-ranking Obligations

(1) The following shall be satisfied as obligations ranking below the obligations mentioned at section 39, in the following order, and equal-ranking obligations in proportion to their amount:

1. obligations towards descendants entitled to a compulsory portion;

2. obligations under the legacies and bequests ordered by the decedent in his will;

3. obligations to persons with rights as substitute heirs.

(2) A legacy excluding the legal entitlement of a descendant under section 2307 of the Civil Code shall rank among the legal entitlements of descendants as far as it does not exceed such legal entitlement. If the decedent has ordered in his will the satisfaction of a legacy or bequest prior to another legacy or bequest such legacy or bequest shall prevail.

(3) An obligation whose creditor has been excluded under the proceedings offering the creditors of the estate to file their claims or ranking among the excluded creditors under section 1974 of the Civil Code shall be satisfied only after the obligations mentioned at section 39 and, if it forms part of the obligations under subs. 1, after the obligations with which it would have been identical. In other respects, such restrictions shall not affect the order of claims.

Section 328: Restituted Objects

(1) Any object restituted to the assets involved in the insolvency proceedings due to contest of the transaction made by the decedent or made with respect to him may not be used for satisfaction of the obligations mentioned at section 327 subs. 1.

(2) Any property to be reimbursed to the assets involved in the insolvency proceedings by the heir under sections 1978 to 1980 of the Civil Code may only be claimed by creditors excluded under the proceedings offering the creditors of the estate to file their claims or ranking among the excluded creditors under section 1974 of the Civil Code to the extent to which the heir would be liable to restitution of such property under the provisions governing the restitution of an unjust enrichment.

Section 329: Revisionary Succession

Sections 323, 324 subs. 1 No. 1 and 326 subs. 2 and 3 shall also apply to a limited heir after the revisionary heir has succeeded to the decedent’s estate.

Section 330: Purchase of a Decedent’s Estate

(1) If the heir has sold the decedent’s estate he shall be replaced by the purchaser for the insolvency proceedings.

(2) The heir may request the opening of the insolvency proceedings like a creditor of the decedent’s estate with respect to an obligation incumbent on the decedent’s estate which is incumbent on the purchaser under his contractual relationship with the heir. The heir shall have the same right with respect to another obligation incumbent on the decedent’s estate unless the heir is subject to unlimited liability or administration of the estate was ordered. Sections 323, 324 subs. 1 No. 1 and 326 shall also apply to the heir subsequent to the latter’s sale of the decedent’s estate.

(3) Subs. 1 and 2 shall apply mutatis mutandis to cases where a person has sold an estate acquired by means of a contract, or in some other way obligated himself to sell an estate acquired by him by law or in another way.

Section 331: Simultaneous Insolvency of the Heir

(1) In the insolvency proceedings concerning the property of the heir, if insolvency proceedings have also been opened in respect of the estate or if administration of the estate is ordered, sections 52, 190, 192, 198, and 237 subs. 1 second sentence shall apply mutatis mutandis to creditors to the estate regarding whom the heir has unlimited liability.

(2) The same shall apply if a spouse is the heir and the estate is part of the joint marital property which is administered solely by the other spouse, also in insolvency proceedings relating to the property of the other spouse and, if the joint marital property is administered jointly by the spouses, also in insolvency proceedings relating to the joint marital property and in insolvency proceedings relating to other property of the spouse who is not the heir.

Chapter Two: Insolvency Proceedings relating to the Joint Marital Property of a Continued Community

Section 332: Referral to Insolvency Proceedings opened for an Estate

(1) In the case of continued community, sections 315 to 331 shall apply mutatis mutandis to the insolvency proceedings relating to the joint property.

(2) Only those creditors whose claims existed as obligations on the joint property when continued community was established shall be creditors to the insolvency proceedings.

(3) Descendants with partial entitlement shall not be entitled to request the opening of proceedings. They shall however be heard by the insolvency court in the case of a request to open proceedings.

Chapter Three: Insolvency Proceedings relating to the Jointly Administered Marital Property of a Community

Section 333: Right to file a Request. Grounds for Opening Proceedings

(1) Any creditor who can demand fulfilment of an obligation from the joint property shall be entitled to request the opening of insolvency proceedings in relation to the joint property administered jointly by the spouses.

(2) Any spouse shall also be entitled to file a request. If the request is not filed by both spouses, it shall be admissible if the illiquidity of the joint property is shown to the satisfaction of the court; the insolvency court shall hear the other spouse. If the request is filed by both spouses, imminent illiquidity shall also constitute grounds for opening proceedings.

Section 334: Personal Liability of the Spouses

(1) During the insolvency proceedings, personal liability of the spouses for obligations the fulfilment of which can be demanded from the joint property may be claimed only by the insolvency administrator or custodian.

(2) In the case of an insolvency plan, section 227 subs. 1 shall apply mutatis mutandis to the personal liability of the spouses.

Part Eleven: Entering into Force

Section 335: Referral to Introductory Act

This statute shall enter into force on the day determined by means of the introductory act to the Insolvency Statute.

 

The above translation was published by the Federal Ministry of Justice. Reproduced with kind permission. This HTML edition by Marcin Szala and © 2003 Gerhard Dannemann. The contents of this page may be downloaded and printed out in single copies for individual use only. Making multiple copies without permission is prohibited.


Post a Comment

Your email address will not be published. Required fields are marked *