An insolvency carryover occurs when the over-indebtedness or insolvency is not reported in time.
In the case of over-indebtedness or insolvency are legal persons, speak managing director of a GmbH and u. Also, a shareholder obliged to file for insolvency within a certain period of time, which is usually three weeks. If no application is made after the deadline, the offense of insolvency is present.
The three-week deadline does not mean that you always have three weeks to file for bankruptcy. On the contrary, this means that you have to file for insolvency after culpable insolvency or over-indebtedness without culpable hesitation, but at the latest after three weeks.
Insolvency does not occur when all resources are completely exhausted and no value is available, but already when the payment obligations can no longer be met in full.
In § 15a of the Insolvenzordnung the wording is as follows:
(1) If a legal entity becomes insolvent or over-indebted, the members of the representative body or the liquidators must submit an opening request without culpable hesitation, but no later than three weeks after insolvency or over-indebtedness.
There is the negligent and deliberate bankruptcy. Intentional meaning knowledge and want of realization of the facts. A negligent bankruptcy is carried out, for example, by breach of due diligence. It is important that the managing director and other responsible persons regularly inform themselves about the economic situation of the company, in order to avoid a transfer of insolvency.
If the obligation to file for bankruptcy expires, the limitation period begins. If insolvency or over-indebtedness have been overcome, the obligation to file for insolvency ceases. Compensation obligations arising from liability for insolvency carry- on lapse after three years.
Insolvency and over-indebtedness
Insolvency occurs when the debtor is at least three weeks no longer able to make the payments to which he is committed, at least 90% and has therefore stopped.
Cessation of payment is to be accepted if the debtor declares that he can not pay or simply does not pay operating costs that are essential to his / her life, such as wages and salaries, social security contributions, taxes, and rents.
Over-indebtedness is mentioned when the assets of the debtor no longer cover the claims.
Who has the application obligation?
Private individuals cannot be accused of bankruptcy.
Basically, the CEO of the GmbH is obliged to file for bankruptcy. Under certain circumstances, however, the obligation may also affect individual shareholders in the group of persons affected, for example in so-called “management-less companies” without a manager.
The application obligation does not expire by a request for creditors or refusal of the insolvency application for lack of mass. It is also not advisable to sell the company in debt, because this does not exempt the former managing director of the application.
A bankruptcy filing also has boards of associations, cooperatives, and foundations. For them, there is no criminal, but only liability consequences in case of a violation.
There is no bankruptcy in private bankruptcy. Individuals and individual companies do not have to file for insolvency. However, in the event of insolvency or over-indebtedness, individual companies may commit fraud or bankruptcy crimes. Foreign corporations domiciled in Germany are also subject to the bankruptcy filing obligation.
Where and how can a bankruptcy petition be filed?
According to § 2 of the Insolvency Act (InsO), the insolvency court is the district court responsible for insolvency proceedings. Accordingly, the bankruptcy petitions must be filed there as soon as insolvency or over-indebtedness is present, in order to avoid bankruptcy.
Before you file for bankruptcy, it is important that you arrange and complete all documents- HQ info on hiring an attorney. You need the following documents for a bankruptcy procedure :
- creditors directory
- Information on income and assets
- Certificate of failure of an out-of-court settlement attempt
According to studies by the German Institute for Applied Insolvency Law, 98% of insolvency applications are not filed within three weeks, but only one year after the bankruptcy. The most common reasons for later application are:
- Hope it will get better again
- Fear of exposure
- The situation is classified as a crisis rather than a bankruptcy
- Lack of confidence in the insolvency proceedings
- The assumption that a late application will not be sanctioned
- Lack of knowledge of the legal provisions.
What happens in case of bankruptcy?
A criminal order for bankruptcy is followed by a trial for which you need a defense lawyer.
The insolvency transfer is a criminal offense. If the managing director or the representative does not file the application in the event of bankruptcy or late, he is liable from this point for mass deprivation in the internal relationship and to the creditors in the external relationship with his personal assets up to the full amount of the damage.
In case of a transfer of insolvency the liability for prohibited payment is regulated in § 64 GmbHG. Accordingly, the CEO is liable from bankruptcy for all payments without active exchange, these are those for which no equivalent has flowed into the bankruptcy estate. In addition, the managing director is liable for payments to shareholders, insofar as these payments are the cause of the insolvency that has occurred.
The managing director also has a liability for insolvency carry- over towards new-believers, towards the social insurance and to the tax office. New creditors are creditors with claims that have arisen after insolvency and were not paid.
The procedure can be stopped for lack of sufficient suspicion, because of insignificance or against conditions. After inspecting the file, you should usually comment on it.
If the proceedings are not terminated and a penalty order for bankruptcy follows, the main hearing will be opened, which will also determine, among other things, whether the bankruptcy by definition is a negligent or intentional one. This distinction has, in addition to the damage caused and the duration of the carryover, a significant impact on the penalty for insolvency.
What is the penalty for a transfer of insolvency?
If you become insolvent, you can be imprisoned for up to three years.
The penalty for bankruptcy is individually regulated and imposed by the court, whereby here § 15a of the Insolvenzordnung applies. If you are convicted of intentional bankruptcy, you will be banned from imprisonment and imprisonment, as well as acting as a general manager. This lock has a duration of usually five years.
In the case of deliberate bankruptcy, you can be imprisoned for up to 3 years. For a negligent, the penalty is a maximum of one year. The exact phrase is:
(4) Penalties shall be imposed for the imprisonment of up to three years or a fine who, contrary to the first sentence of paragraph 1, also in conjunction with sentence 2 or paragraph 2 or paragraph 3, has an opening request
1. does not or does not provide on time or
2. does not correct.
(5) If the offender acts negligently in the cases of paragraph 4, the penalty shall be imprisonment of up to one year or a fine.
What does a transfer of insolvency mean for the GmbH?
If you receive an allegation of bankruptcy, you will receive a police summons, but you will not be required to comply. A charge from the prosecution or from a judge you must comply with it.
Before you go to a police interrogation as a director of a GmbH because of bankruptcy, you should be well prepared and in any case, take the help of a lawyer for debt or for bankruptcy law. With wrong answers, you could not only be accused of bankruptcy but also bankruptcy according to § 283 StGB.
Bankruptcy threatens a fine or imprisonment of up to five years. This applies to sole proprietors, freelancers, registered merchants, managing directors of a GmbH or UG and board members of an AG, a cooperative or an association, director of an ltd.
What can you do as a manager in case of insolvency?
If you are being reported for bankruptcy, you should consult an insolvency lawyer.
According to the StGB, bankruptcy has drastic consequences for managers, which is why many tend to sell the company or use a so-called straw executive. However, it is not advisable to do so, since in the case of a transfer of insolvency it is decisive as of when insolvency exists. By later measures, you do not escape the manager liability. In the case of bankruptcy, it is therefore important to consult an insolvency lawyer and discuss further steps with him.
The following knowledge should be brought by the lawyer who defends you in the case of the transfer of insolvency :
- Excellent knowledge of insolvency law
- Good knowledge of the procedures in insolvency proceedings
- Procurement of defense-relevant information from the insolvency proceedings
- Good knowledge of business issues
- Understand corporate balance sheets and business transactions in defense strategy
- negotiating skills
- Look for realizable events
- Experience in insolvency criminal law
What can you do if suspected bankruptcy is suspected?
If you have a concrete and reasonable suspicion that there is a criminal offense under the Criminal Code, you can file for bankruptcy by filing a complaint with the prosecutor or the court.
The criminal complaint about bankruptcy can be made either in writing or verbally, with the verbal according to § 158 InsO is to be certified.
If you report a bankruptcy charge and provide evidence, the public prosecutor must clarify the facts.
However, an ad for bankruptcy should not be handled lightly. Before you become a prosecutor or a court, you should ask yourself, “When is there a bankruptcy?” Because if you give false information, the debtor may also report you on suspicion of wrongfulness.