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By Reinhard Schinkel (More) • Last updated on October 16.05.2012, XNUMX • First published on 16.05.2012/XNUMX/XNUMX • So far 4635 readers, 1432 social media shares Likes & Reviews (5 / 5) • Read & write comments
The new insolvency law offers for Company Many advantages - but not only: Even as a creditor, you now have more say - for example, through your participation in the creditors' committee.
The first stage of the so-called insolvency law reform came into force on March 01.03.2012st, 2013. The second stage is already in the pipeline and is expected to come into force in major parts of the law at the beginning of 2012. The third and final stage is also being planned. Which new regulations do entrepreneurs have to observe from March XNUMX? This reform of the bankruptcy law goes by the beautiful name “Law to further facilitate the restructuring of companies” (ESUG). What do companies have to consider since March?
If the company finds itself in financial difficulties, this does not have to be due to its own mismanagement. payment defaults of customers, delivery bottlenecks by suppliers, political unrest in a main customer area can also fast lead to insolvency or temporary insolvency.
The so-called opening application at the insolvency court should always be rounded off with the detailed information on the liabilities. There is even the need for legislation in medium-sized to large companies, or if the self-administration is requested or a creditors' committee is to be set up.
The following list must also contain the following information:
If false statements are made in the opening request, this can also lead to criminal liability for the debtor, such as a late or unsuccessful application for bankruptcy! If time is short, you should submit the list (incomplete) and ask for a deadline for the correction.
Attention! If the opening application for a corporation is filed too late, the person liable under civil law is obliged to pay an advance to cover the costs of the proceedings (managing director or shareholder involved). This payment is not recommended in advance. It is a guilty admission that the request was made too late.
So-called self-administration was strengthened by the new insolvency law. If there is only a threat of insolvency or over-indebtedness, you can use the protective shield of self-administration to carry out the restructuring to plan and start. How do you get self-administration now?
Self-administration can be done via two ways run. One is: you apply for it directly. The second way to self-administration would be for the constituted creditors' committee to apply for or approve self-administration before the court. An overview:
The application should only be rejected if the rehabilitation appears to be obviously hopeless. This would be the case, for example, if there is no viable reconstruction project, or the rehabilitation is not supported by the creditors.
If the application is rejected and there is only an imminent insolvency, they can also withdraw this application in order to avoid the opening of a regular insolvency proceedings.
If the application is approved, you will be assigned a "custodian" who you can usually help determine. As a duet, you have three months to come up with a rescue plan. In the selection of the administrator, the lenders are also likely to get involved in the background.
The advantages are on the Hand. The trustee monitors your business activities to ensure that no creditor damage occurs. However, you keep the reins of action in your own hands.
In the course of self-management, you can now break down unlucrative contracts in order to gain a little liquidity or to continue or expand already existing lucrative contracts.
During this period (a maximum of three months), you are protected against the creditor's enforcement. Within the framework of this protective screen, you can promote the rehabilitation in peace.
As already mentioned, the second way to self-administration would be for the constituted creditors' committee to apply for or approve self-administration before the court. Then the court has this Suggestions to follow, since obviously no creditor disadvantage will occur.
Conclusion: Self-administration generally does Sinn, because on the one hand process costs are saved and on the other hand you are the economic expert in your business area. On the other hand, if you are a creditor, participation in the creditors' committee offers several advantages.
In addition to the proposal for self-administration, the creditors' committee may also make a proposal to the court as the insolvency administrator. So you have it in your hands who should save your claims to the greatest extent possible. Maybe you know a very capable person who is best suited for this job.
The provisional creditor committee even has the power to deselect a provisional insolvency administrator. Decisions of the bankruptcy court can be revised in this way.
Also new is that you can convert your claims into a stake in the company Crisis can convert. In the case of a successful renovation, there is a chance of even achieving positive added value.
If the restructuring fails and the company finally goes bankrupt, you don't have to either Anxiety have that a later additional claim will be made. If the conversion of the claim into a participation in a company has been confirmed by a court, no additional claims may be made (§254 Para. 4 InsO).
Incidentally, if you continue to have business relationships with the debtor during the "protective shield procedure" and the bankruptcy procedure follows despite your best efforts, the liabilities that were established during this time are usually so-called bulk liabilities that are primarily satisfied in the bankruptcy procedure.
Conclusion: The first stage of the bankruptcy reform puts the main focus on the possible restructuring of companies and at the same time strengthens the rights of creditors. Should your business be in financial distress, the early application for self-administration helps to bring about a successful restructuring.
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According to the Handelsblatt, Reinhard Schinkel is one of Germany's best tax consultants and a specialist author for tax law. Schinkel was born in Berlin in 1970. Two days after being appointed as a tax consultant, he founded his own law firm in 2007 and embarked on the adventure of self-employment. Since 2009 he has published various books as a specialist book author. Since 2011 he has been writing monthly for the well-known business magazine Fuchsbriefe from Berlin, since 2016 his comments on the judgment have appeared in the magazine Agrarbetrieb. He is the managing partner in the tax consultancy company HSP STEUER Berlin Southeast according to the credo "Passionate tax consultant". More information at www.hsp-steuerberater-berlin-suedost.de All texts by Reinhard Schinkel.
Dear Mr. Schinkel,
I happen to come across your informative website. Maybe your visitors could be interested in following articles. We help creditors in the process of insolvency to take their interests by providing them free of charge in the creditors' committee. Below is our PM on this topic. Sincerely
F. Eberhard Ostermayer General publicly appointed sworn auctioneer
Creditor rights in insolvency proceedings
Creditors and insolvency administrators are in competition. The creditor aims at realizing his demand in a timely manner. The efforts of the insolvency administrator are aimed at enriching the mass, on simply implementable recovery and restructuring measures and from the economic interest of the insolvency administrator, to cover their own costs and fees.
The amendment to the insolvency law (ESUG 01.03.2012), which came into effect on 2012, represents a turnaround. It is linked to a strengthening of creditor rights. Creditors can get involved in the procedure earlier and thus have a decisive influence. For example, it is now possible by unanimous decision to appoint the person of the liquidator and to perform other extensive control functions. This requires participation in the provisional creditors' committee. The influence and control of the insolvency administration is possible only through the creditors' committee.
The profile of requirements to the members in the creditors' committee is largely congruent with that of the general, publicly appointed, sworn auctioneer. He is sworn to his independence in the proceedings, committed to secrecy against third parties and must thus in a special way to protect the rights of all parties involved in the proceedings. He is entitled to the utilization of contractual and legal liens (legal definition according to § 383 BGB). This includes the insolvency estate. The valuation and recovery of bankruptcy assets has always been one of his main tasks. Thus, he has special expertise in the procedure in the commercial settlement under the conditions of bankruptcy. He knows the appropriate national and international sales channels and can thus contribute to the avoidance of insolvency goods. For that reason alone, he is suitable for safeguarding the interests of the creditors and, as a member of the creditors' committee, can contribute valuable contributions to the insolvency proceedings.
Through his previous work, he knows the insolvency administrator industry. This is helpful when it comes to naming the best administrator for the procedure. Proper selection of a suitable liquidator can significantly influence the process.
Another aspect is the avoidance of liability and process risks. Unlike the assignment of own permanent employees (duty of care of the employer), the exemption from liability can be contractually regulated. The principles of internal damage compensation do not apply to commissioned third parties. In the past, there have been spectacular cases of fraud and infidelity by insolvency administrators. (see Steinwachs / Vallendar, The creditors' committee in the insolvency of the corporate client, S. 184). In such cases, the insolvency administrator's professional liability does not apply. Then the members of the creditors' committee and their claims become the focus of the subsequent insolvency administrator and are prosecuted with great intensity (see Steinwachs / Vallendar, p.240). As a result, there may be a significant amount of time spent on potential follow-up, which would lead to a loss of employment when permanent employees are employed by the creditors' committee.
In contrast to the law firm usually employed, there is no conflict of interests. Although the lawyer as a creditor committee member is not obliged to silence himself against his client (BGH by 22.4.1981 VIII ZR 34 / 80, ZIP 1981, 1001), he may, in his capacity as a lawyer, obtain the information obtained during his activity as a member of the Credit Committee in the interests of the interests of the creditor population, which are to be predominantly to be safeguarded, not in conjunction with his client to the detriment of the other creditors (cf. Steinwachs / Vallendar, p. 20). This means: If your lawyer's office is working for you in the creditors' committee, she can no longer exercise your rights in this insolvency proceedings for reasons of collision of interests!
The issue of bank secrecy and compliance is important for credit institutions. The compliance departments of the credit institutions must also avoid too close proximity between the bank and customers, even under the pressure of the BaFin, in order to avoid possible dependencies and conflicts of interest (Steinwachs / Vallendar, S. 33). For bank employees, the obligation to maintain secrecy and compliance with the rules of compli- ance is prohibited. It is therefore inadmissible to use the knowledge acquired in the creditor committee indoors. Through its involvement it is ensured that this knowledge can not reach other areas of the credit institution. In addition, there is the latent risk that bank secrecy will be violated by employees sent to the creditors' committee.
Turning on the auctioneer saves the human resources of the company. The work in the creditors' committee often has to be done during leisure time. As a result, there is an internal pressure to justify the compensation claims of the permanent employees who are turned down to the creditors' committee.
Moreover, the creditor does not incur any direct costs, other than a possible premium for liability insurance. In accordance with § 73 InsO and §§ 17, 18 InsVV, the members of the creditors' committee generally receive an hourly rate of € 35 € to 95 € plus VAT per hour and reimbursement of their expenses from the bulk. If the creditor can not represent his rights in the insolvency proceedings, there is the risk that another creditor with his specific interests will become active at the expense of the bulk of the proceedings.
The auctioneer, who is entitled to the right to use the Pfandrechts, now has a new task to be stimulated by previous clients from the lending sector. If creditors have no time to become active in insolvency proceedings themselves, avoid personal liability, or lack the necessary knowledge and human capacity, then they can provide free and effective assistance.
We offer credit institutions, leasing companies, wholesalers, hauliers, landlords to use our know-how by representing them in the creditors' committee. For further information, please visit www.gläubigerrechte.com.
Author: F. Eberhard Ostermayer
General publicly appointed, sworn auctioneer
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