Peculiarities of court proceedings in insolvency cases under the laws of the Federal Republic of Germany
The present article represents the results of the analysis of the German model of court proceedings in insolvency cases. In particular, within the framework of our research we have analysed specific aspects of the use of terminological apparatus, inter alia, we have traced the differences of the use of terms ‘insolvency’ and ‘bankruptcy’ under the laws of Germany. Besides, the article covers jurisdiction rules in insolvency cases and provides key characteristics of enforcement proceedings in respective cases. The present article contains in-depth analysis of criteria for recognition the debtor’s insolvency, namely, inability to pay, threatening inability to pay and over-indebtedness. During our research we have also identified and analysed legislative grounds for rejection of the debtor’s or creditors’ application initiating insolvency proceedings.
Further, the article clearly indicates the functions and powers of the court, as well as the rights and obligations of the parties at each stage of court proceedings in insolvency cases, notably, imposition by the court of security measures, namely, appointment of insolvency practitioner and restriction of the right to dispose of the debtor’s property, adoption or rejection by the court of insolvency recovery plan submitted by the debtor or appointed insolvency practitioner. This article also highlights time frames for realization of the above-mentioned rights and obligations and for the entire insolvency proceedings itself.
The article reflects evolution of German court’s approach to foreign proceedings in insolvency cases, as well as to decisions of foreign courts in case of this category from total non-recognition to recognition and incorporation of respective rules into the legislation of Germany on cross-border insolvency. The evolution in question is sustained by glaring court practice in this regard.
The present article provides quantitative conclusions on peculiarities of the entire insolvency system of Germany and, particularly, of German model of court proceedings in insolvency cases.
Konkursordnung; Grosskommentar; par. 1-42, Register / begr. Von Ernst Jaeger. – 9., völlig neu bearb. Aufl. / bearb, von Wolfram Henckel. Berlin; New York: de Gruyter, 1997 [in German].
Breuer W. Das neue Insolvenzrecht. Verlag C.H. Beck, München, 1998. S. 1–2 [in German].
“Norsk Data” Prozess. 1996. URL: https://www.zip-online.de/heft-1-1997/zip-1997-39-anerkennung-eines-im-ausland-geschlossenen-zwangsvergleichs-norsk-data/ [in German].