Bankruptcy

Is meant by bankruptcy (Italian banca rotta, " battered table " ) colloquially the insolvency and in particular the insolvency of a debtor ( colloquial synonym also: bankruptcy ). In Germany a bankruptcy offense is criminally referred to by this term.

General

Italian money-changers of the Renaissance have on tables ( the Italian " banco ", a counter or a workbench be ) offered their services. Was money changers do not meet its contractual obligations, his table was destroyed. It went so earlier in Italy ensuring that financially troubled borrowers at risk their existence. Today in Italy, the term a creditors damaging behavior. The bankruptcy since March 1942 at the Italian " Legge fallimentare " (Art. 216, 217) regulated.

Germany

In 1457, the term seems to have first appeared in Hamburg: " Bankeruth often Spoelen sea kopen dan sy betalen kunnen. " The draft " embarrassing Code for kurpfalzbaierischen States " already foresaw in 1802 that, "who by willful Bankerut his creditors inflicts damage " as a punishment should come to the workhouse or penitentiary. This was the forerunner of today's fraudulent bankruptcy. Even in 1830 was that someone committed fraudulent bankruptcy if he could pay, but did not want to.

Criminal

The term bankruptcy is found today only in German criminal law ( § 283, § 283a StGB) and belongs to the bankruptcy offenses. Here are a few mentioned in the law intentional constituent elements in the area of ​​fraudulent insolvency or impending insolvency or been incurred are occupied with the threat of punishment. The law in listed exhaustively factual facts must be committed during a corporate crisis or cause such a crisis causally related. There are mainly abstract endangerment offenses, so that a concrete threat to individual or any of them is not required. For the interpretation of the " economic crisis " provide the legal definitions of the Insolvency Act, a first and important orientation. Up to these few criminal offenses, the legislature used in Germany since January 1999 for insolvency or bankruptcy the term. Since the bankruptcy of an individual is treated as personal bankruptcy.

Then shall be punished with imprisonment of up to five years or a fine, who in indebtedness or in case of imminent insolvency or been incurred

Trying this offense is also punishable. The deed in principle requires intent, Eventualvorsatz enough. However, certain cases of negligent acts and negligent causation of success are according to § 283 para 4 and 5 of the Criminal Code offense, but threatened with lesser punishment. Objective condition of criminal liability is that the insolvency proceedings opened or has been rejected because of insufficient or the offender has stopped making payments.

Civil law

The concept of insolvency is defined in § 17 para 2 Insolvency Act. Thereafter, the debtor is insolvent when it is unable to meet the due payment obligations. It is crucial in this case depends on the date of maturity of the receivable. The already occurred due date can be eliminated (only ) by hour or installment agreements. Distinguish themselves from insolvency, the mere Zahlungsstockung. A Zahlungsstockung occurs when short-term liquidity and unrecoverable missing, but it is reasonably certain to be expected within a three -week period with the restoration of the ability to pay.

The failure can be detected by a date-based balance sheet liquidity. But it can also be suspected if certain indications exist, such as by the express declaration, not being able to pay, failed execution attempts or non-payment of wages, salaries and social security charges. In this case, it is up to the agent to rebut the presumption of insolvency in turn.

Bankruptcy

The term bankruptcy is not a legal concept in Germany; Bankruptcy means in the literature, the non-fulfillment of financial obligations of a State. For the Federal Constitutional Court, a state bankruptcy was the " mismatch between the performance and the liabilities ." There is neither a standardized method still accepted indicators from which a state of insolvency can be derived. Since the Second World War it has in Germany - as far as can be seen - where no case of insolvency of a legal person under public law.

State bankruptcy was and is a frequent international aptly in reality process. State insolvency has been declared in the last 200 years in 90 cases. In Europe too, have states - some even multiple times - unable explained to service their debt. The IMF is trying to develop the basic structures of a state insolvency law since November 2001 as part of his Sovereign Debt Restructuring Mechanism. In April 2003, however, showed that such formal crisis solution concepts found no adequate political support at a number of important IMF member states.

Other States

• In Switzerland there since April 1889 - repeatedly changed - Act on Debt Enforcement and Bankruptcy Law.
• In Austria, the Insolvency Act sets out the procedure (see also Krida ).
• In the UK there is the Insolvency Act of 1986, between corporations ( " insolvency " ) and partnerships and natural persons ( " bankruptcy" ) is different.
• In the U.S., a legislative standpoint, always spoken of " bankruptcy". The Bankruptcy Act of 1898 ( " Nelson Act " of July 1, 1898, ch. 541, 30 Stat. 544) was the first law regulating the bankruptcy proceedings in the United States. It was replaced by the Bankruptcy Reform Act of 1978 (95-598, 92 Stat. 2549 of 6 November 1978).