Liquidator (law)
The insolvency administrator (before the introduction of the Insolvency Act in Germany and Austria as well as in Swiss law bankruptcy trustee or bankruptcy administrator ) is appointed at the opening of insolvency proceedings from the bankruptcy court and overseen by this court.
Germany
Jurisdiction
Subject Matter Jurisdiction
Subject matter jurisdiction is exclusively the district court in whose district a district court has its seat, § 2 Insolvency Act ( Insolvency Act ). Due to the exclusivity of jurisdiction is otherwise admissible fundamental prorogation, ie an agreed by the parties, jurisdiction, pursuant to § 2, § 4 excluded Insolvency Act in conjunction with § 40 para 2 No. 2 Civil Procedure ( ZPO).
Territorial jurisdiction
The local jurisdiction is based on § 3 Insolvency Act, according to which the district court has jurisdiction lies in the district where the center of an independent economic activity of the bankruptcy debtor, § 3 para 1 sentence 2 of Insolvency. If the bankruptcy debtor consumer (§ 13 BGB), then the local jurisdiction of the bankruptcy court governed by the general jurisdiction (§ § 12 ff ZPO ) of the insolvency debtor. The local jurisdiction is exclusive, so with respect to an agreement conferring jurisdiction, the same applies as for subject-matter jurisdiction.
The liquidator must be appointed " competent and independent of the creditors and the debtor natural person" under § 56 Insolvency one. In general, there are lawyers who ( sometimes called a lawyer specializing in bankruptcy law ) specialize in an activity as insolvency practitioners and often exercise only this profession.
End and remuneration
With the abolition or cessation of insolvency proceedings, the activity of the insolvency administrator, who can then make his remuneration as a method costs claimed ends ( § 63 para 1 Insolvency Act ). Decisive for the amount of the remuneration of the liquidator is the insolvency Legal Compensation Regulation ( InsVV, see § 65 Insolvency Act ). The compensation shall be granted after the so-called rule sets. It should be noted that the standard rate of compensation for the value of the total assets is calculated at the time of closure of insolvency proceedings.
Following the bankruptcy legal remuneration Regulation ( InsVV ) the liquidator obtained at a value of the mass at the completion of the process of 25,000 euros or less 40 % of the bankruptcy estate, but at least 500 euros (from 2004: at least 1,000 euros, increased by more than 10 creditors, the amount yet). For further 25,000 euros compensation is 25 %, with another 200,000 euros 7%, for the other 250,000 EUR 3%, for the other 24,500,000 euros 2 %, for going beyond 25 million euros and 1% for all beyond this excess amounts 0.5%. The remuneration is divided thereby proportionately to the respective scales. The usual business costs are covered by this fee, but can be made separately claimed travel expenses etc. With the approval of the Court, the liquidator may see an advance for his services from the crowd.
The shape of the remuneration of the administrator shall act in particular against claims by the bankruptcy estate on the one hand from his position out, since they belong to the bankruptcy estate, and on the other in their own interest, because - at least for small estates of insolvent - not to a negligible extent of his remuneration the successful collection of the claims benefits. Hence, conflicts can arise in the choice of means, such as ( Suit ) threats, etc. In addition, it should be noted that the liquidator who is admitted to the bar, for activities which are not a licensed attorney as administrator reasonably a lawyer would have transferred, in accordance with the Lawyers' Remuneration Act fees and expenses separately from the assets taken (see § 5 InsVV ).
Since the manager's remuneration is usually set at the process end, a swift action is in its interests, without there being a specific period for the duration of bankruptcy proceedings. In cases of difficult recovery location of the assets insolvency proceedings may take some years. This circumstance can cause stress for those affected.
Education requirements
A vocational education to be the administrator does not exist. However, regularly lawyers focusing Bankruptcy Law, economists, tax advisors and accountants are entrusted with the duties of the liquidator. Access to the office of the liquidator is not clearly defined. The selection of the insolvency administrator is incumbent upon the competent insolvency judge. For insolvency only suitable persons to be appointed. Moreover, as the judge gives an overview of the eligible group of people, so who can come as liquidator into consideration when the pending regularly in a short time decision to be made, the law contains no rules.
Since some bankruptcy courts so-called closed lists were set up so regularly the same persons were appointed as liquidator to applicants who were not included, have turned to the constitutional complaint against this practice. The Federal Constitutional Court then created rules for the appointment of the liquidator.
In another decision of 23 May 2006, the Federal Constitutional Court has ruled that it is an independent profession in the activities of the liquidator.
Election
The creditors' meeting may replace the liquidator by a new one. But not only the sum moderate majority of the claims, but also the head moderate majority of creditors is required. The newly elected liquidator must, if he is not totally inappropriate to be ordered by the court.
Mass ratio
The official theory as the prevailing opinion sees the official receiver acting as ex-officio. He acts in his own name and with effects for and against mass and debtors.
According to § 80 paragraph 1 of the Insolvency debtor must not have and manage on the ground ( the attachable assets ). However, it is still part of its assets. The available power itself passes to the liquidator.
The administrator has to create an inventory of the mass with respect to the administration and to secure the mass against the debtor and creditor.
Exceptionally, keep the disposal and management power of the debtor, if the court permits self-administration.
Liability of insolvency and court
If you think the liquidator of the obligations of insolvency law, so he violated office specific duties, he is obliged to pay damages to all parties ( § 60 para 1 Insolvency Act ). Damages may be entitled thus: insolvency creditors, the debtor, training and secretion entitled, mass creditors. The administrator has guaranteed the due care of a prudent and diligent insolvency administrator ( standard of fault; § 60 Section 1 Sentence 2 Insolvency Act ). He is liable with his entire personal fortune. The liability of the liquidator shall be governed by § 60, § 61 Insolvency Act. In particular, the administrator shall be liable in principle also personally when he founded as an insolvency liabilities ( liabilities mass ) and these can not be fully met from the bankruptcy estate. In addition to the private assets, the bankruptcy estate is liable with. The claims against the insolvency administrator shall expire grds. after the limitation period of three years from their knowledge ( § 62 sentence 1 Insolvency Act ); but no later than three years from the cancellation or cessation of insolvency proceedings on ( § 62 sentence 2 Insolvency Act ). Error in the selection of the insolvency administrator by the insolvency court can draw 839 BGB in conjunction with Article 34 of the Basic Law by a public liability under § because the judge saying privilege ( § 839 para 2 BGB) does not apply for the selection decision.
The ratio of the liquidator to the mass
During the official legal status of the liquidator is relatively unproblematic, has been controversial for a long time, nor to whom the trustee is acting on the external relationship. Considering comes an action for and against the mass, the debtor, the creditors and in case of litigation the court.
Creditor representation theory
After today no longer represented creditor representation theory, the liquidator acted as a representative or member of the body of creditors. This theoretical approach was justified by the fact that the insolvency procedure was carried out exclusively in the interests of creditors and these also have a significant impact on the process. The problem with this view, however, is that the managers act primarily the debtor and its assets is not the case, however, the creditors. Furthermore, creditors are not legally connected together so that the idea of representing creditors as a whole remains undecided.
Debtor representation theory
The debtor representation theory considers the Administrator as the representative of the debtor, with the power of attorney would be created by law. This theory can convincingly explain why the manager can undertake effective for the debtor. However, it can not explain the contradiction that a representation is typically carried out in the interest of the represented, while the liquidator must be many interests.
Organ theory
The representatives of the organ theory, however, see the administrator as a representative of the bankruptcy estate. Thus, they measure to the bankruptcy estate entity quality. It can be used all the effects of administrator actions, who are usually restricted to the ground, establish well. Against the organ theory, however, is the fact that under German law, a single entity, never the other hand, an object can be represented. The organ theory corresponds to the prevailing legal opinion, namely that the trustee acting for the benefit and at the expense of the bankruptcy estate. This follows also from the fact that he can lead from the bankruptcy estate a further operation if necessary and can satisfy the employee ( employee) from the Ins.Masse as so-called mass creditors. Likewise, other Neugläubigerin associated with a plant continuation or operations management. This legal construction would be inconceivable and impracticable without the organ theory. The Ins.Masse here is a legal entity as a so-called special fund similar to a foundation.
Official theory
According to the view of the prevailing opinion of the Official Theory of insolvency is by virtue of office in his own name and with the consequences, which are stipulated by the law in each case for and against the estate, or for or against the debtor. A legal evidence for this theory can be found in § 116 Sentence 1 No. 1 ZPO. The outstanding theoretical clarification of interpretation opens up a gray area, especially since the remuneration technical self-interest, the administrator may counteract the official representative role quite systematically.
Provisional liquidator
The court may order before the opening of the insolvency procedure, a so-called provisional liquidator in accordance with § 21 Section 2 of Insolvency. The status depends on the decision of the Court of content. Most decisions require that orders the debtor depend on the approval of the preliminary insolvency administrator. In this variant of the so-called "weak" temporary administrator, the insolvency administrator has no power of disposal and perceives only functions of the backup. The scope determines the bankruptcy court. In exceptional cases, the court determined that the available power is transferred to the provisional liquidator. The provisional insolvency administrator should not use the mass, it may not, however, companies continue to shut down and only with the approval of the Court as well. He has also to determine whether sufficient assets to cover the costs of the proceedings is available.
Austria
Since the Bankruptcy Law Amendment Act 2010, the term insolvency is also used in Austria. The procedure in Austria is called insolvency proceedings, which in turn is divided into the rehabilitation process and the bankruptcy process. In the restoration process is known as the trustee in bankruptcy reorganization administrator and trustee in bankruptcy. He is appointed by the bankruptcy court of a run by the Oberlandesgericht Linz database ( insolvency administrator list). It is responsible for the practical implementation of the bankruptcy proceedings. It manages and represents the assets of the debtor, reviews the claims filed and shall report to the bankruptcy court about it. In the examination hearing, where the registered bankruptcy claims will be verified, acknowledges or denies the trustee in bankruptcy this.