Fraudulent conveyance

The Paulianische annulment is a suit to challenge transactions that have been completed to the detriment of one or more creditors.

The lawsuit (Latin actio Pauliana ) goes back to Roman law and is after a Digest - point ( D. 22,1,38,4 ) of the lawyers named Paul.

Roman law

In Roman law two appeals against the discrimination of creditors were granted by the praetor:

  • In integrum restitutio ( during the execution ),
  • Interdictum fraudatorium ( after completion of bankruptcy proceedings).

From Justinian these remedies have been combined into a single action, the Actio Pauliana.

Germany

In Germany a distinction is contesting creditor damaging shops within the insolvency proceedings ( then Voidable under § § 129 et seq Insolvency Act ) and the challenge outside the insolvency proceedings under the dispute Act). The term Paulianische challenge is this not common.

Switzerland

The paulianische challenge of Swiss law is a disputed law business, which has made a person or company shortly before bankruptcy. It serves the equal treatment of all creditors in foreclosure by those concerned in the dispute assets of the bankruptcy estate or retained mass.

It is allowed both inside and outside of bankruptcy. This follows in particular from the corresponding description of the locus standi under Article 285, paragraph 2 SchKG.

A distinction is made in modern Swiss law, the gift, the over-indebtedness and the Absichtspauliana (Art. 285 ff DCBA ).

Liechtenstein

The Paulianische annulment is governed by Liechtenstein in the challenge procedure.

Purpose and contesting authority

Mentioned in the order contesting legal actions involving the assets of a debtor may be declared ineffective action against it, be challenged in order to satisfy a creditor and. To challenge each creditor is an enforceable requirement without regard to the time of their inception authorized ( challenge authority ) if the foreclosure has not led to a complete satisfaction of the creditor, or to take in the granting of enforcement is that it will not lead to such a.

Assertion

The challenge may by action ( counterclaim ) or objection, be asserted by speed command or Rechtsbot.

If the opposing party can prove that the contesting creditor has willed the law reviewable act itself, agreed with her ​​or she has subsequently authorized in knowledge of countervailable circumstances, the temptation claim must be dismissed.

Possibility of appeal

Active actions

Voidable within one year before granting the foreclosure as the following legal acts performed:

  • Transfers without charge (eg waiver of a not yet established right to waiver of the succession also basically completed donations, as far as it is of such acts is not the fulfillment of a legal obligation to common occasional gifts. );
  • Transactions in which the debtor has adopted a consideration currently its performance, which is related to its own performance in a disproportion;
  • Any transactions by which the debtor has earned or a third party, an annuity or a usufruct;
  • The seizure or provision of the marriage, unless the debtor to do so. neither by a at inception of marriage or order of the marriage contract entered into, was still in the event of termination of the marital union required by law, the seizure or the handing over of the abutment or the widow content
  • Creation of a pledge or equal to this coming into effect of the legal rights, was earlier law or not legally obliged to secure an existing debt, the fulfillment of which ensure the debtor;
  • Repayment of a monetary obligation in any other way than by ready cash or other usual means of payment;
  • The payment of an unexpired debt.

Voidable are without regard to the time of its adoption all acts which the debtor has made ​​in the other parts currently making their recognizable intention to disadvantage his creditors or to the benefit of individual creditors to the detriment of others.

Omissions

Omissions of the debtor, by which he loses a right, or justified by the pecuniary claims against him, may be obtained or secured also be challenged. Examples:

  • Omission of Antretung an inheritance, or
  • Failure to challenge the violation of the compulsory portion or
  • Failure to challenge an illegal disinheritance.

Consequences for the opposing party

Who hath purchased with a reviewable legal act the debtor's assets is required in principle the same for the return.

Limitation

The legal challenge ( counterclaim ) barred by the expiration of five years from making the contestable legal action.

Julius Paulus Prudentissimus
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