1. Sense and purpose of contesting insolvency
The insolvency challenge is a legal tool used in insolvency proceedings. It enables the insolvency administrator to reverse certain legal actions that were taken before the opening of the insolvency proceedings and disadvantage creditors. This is usually done by reclaiming payments or terminating contracts.
The purpose of contesting insolvency is to ensure a fair distribution of the insolvency assets among the creditors. It prevents individual creditors from being given preferential treatment and others getting nothing. The legal basis for contesting insolvency is the Insolvency Code (InsO), in particular Section 129 et seq. InsO.
2. Prerequisites for contesting insolvency according to § 133 InsO with explanation
One of the most important regulations in the context of contesting insolvency is § 133 InsO.
This norm regulates the so-called contestation of intent and enables the insolvency administrator to contest legal acts that were carried out with the intention to disadvantage creditors. Section 133 InsO provides the insolvency administrator with a far-reaching challenge tool.
The requirements for a challenge according to § 133 InsO are:
legal act: There must be a legal act. This includes both legal transactions (e.g. conclusion of contract, payment) and actual transactions (e.g. delivery of an item).disadvantage of creditors: The legal act must have led to the creditors being disadvantaged. This is the case if the creditor’s ability to obtain satisfaction has deteriorated as a result of the action.intention of the debtor: The debtor must have acted with intent to disadvantage his creditors. This intent must also have been known to the other party (opponent of the challenge).Knowledge of the opposing party: The opposing party must have been aware of the debtor’s inability to pay and his intention to discriminate against him.Time limit for appeals: The legal act must have been carried out within a certain period of time before filing an application to open insolvency proceedings. This period is generally ten years, but can be reduced to up to four years in certain cases.3. Legal consequences of contesting insolvency according to § 142 InsO
The legal consequences of contesting insolvency are regulated in § 142 InsO. If a legal act is successfully contested, it is ineffective against the insolvency estate. This means that the original state is restored as if the legal act had not taken place.
In practice, this usually means that the opposing party has to return a service that has already been received. This can be, for example, a payment that the debtor has made to the opposing party. The amount returned then flows into the insolvency estate and is available to satisfy the creditors.
In short, this means that completed transactions can be reversed if attacked by the insolvency administrator.
This can create a significant disadvantage and economic damage for the contractual partner and service recipient. Because the opposing party has to hand over the thing or pay it back and in return only receives a claim against the insolvency estate as an insolvency creditor according to § 38 InsO, which has to be registered with the insolvency table.
4. Conclusion
If you, as the opposing party, are confronted with an insolvency challenge, it is advisable to consult a lawyer. He can check the requirements for contesting and, if necessary, raise objections to the contestation.
There are a number of lines of defense that can be set up. These go beyond the individual factual requirements and their various forms to questions of the burden of proof and the distribution of the burden of proof.
For a non-expert lawyer in this area, both the system and the context as well as the multitude of complex case law can hardly be penetrated.
In order to avoid legal and economic disadvantages for the opposing party, it is therefore advisable to consult a competent lawyer.
This article does not constitute concrete and individual legal advice, but only provides a rough initial overview of the very complex legal matter described. You can only obtain legal certainty for your specific case constellation through coordinated examination and advice from a competent lawyer.
I am happy to be at your disposal as a lawyer and specialist lawyer for a legal assessment and assessment of your case and represent your interests assertively and resolutely. (With) creditors and the insolvency administrator. Feel free to contact me by phone or write to me.
I advise nationwide on site or via zoom as a specialist lawyer in the areas of corporate law, tax law and insolvency law, including in the cities and metropolitan areas around Stuttgart, Heilbronn, Karlsruhe, Freiburg, Ulm, Augsburg, Munich, Frankfurt, Wiesbaden, Saarbrücken, Kaiserslautern, Bonn, Wuppertal, Duisburg, Nuremberg, Munster, Saarbrücken, Düsseldorf, Cologne, Dortmund, Hanover, Kassel, Leipzig, Dresden, Bremen, Hamburg and Berlin.
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