Insolvenzverfahren Eröffnung

§§ 16 ff. Insolvency Code (InsO)

Insolvency proceedings are only opened upon written application. The creditors (so-called third-party application) and the debtor (so-called own application) are entitled to file an application.

This application must be admissible and justified.

As part of the admissibility of an insolvency application, the insolvency court checks in particular whether the person or persons who signed the application were authorized to do so.

• In the case of legal entities (e.g. corporations or registered associations), each legal representative (managing director, member of the board of directors),
• in the case of a legal entity, any shareholder in the event of a lack of management,
• in the case of a public limited company or a cooperative, every member of the supervisory board is also entitled to submit an application,
• in the case of companies without legal personality (e.g. OHG or KG), each personally liable partner is individually entitled,

to submit their own application on behalf of the legal entity, even if they are otherwise only authorized to represent the legal entity jointly with other persons. In addition, if an application is submitted by a shareholder of a legal entity or a member of the supervisory board, the lack of management must also be substantiated. Special rules apply in the case of an own application due to imminent insolvency.

The key aspect for the justification of the insolvency application is the question of whether there are grounds for opening insolvency proceedings. The grounds for opening insolvency proceedings for both own and third-party applications are

• inability to pay (§ 17 InsO) and
• (only for legal entities) over-indebtedness (§ 18 InsO)

come into consideration.

In the case of an application by the company itself, the

• imminent insolvency (§ 19 InsO)

may also be considered.

In addition, insolvency proceedings will only be opened if the future insolvency estate is likely to be able to finance the costs of the insolvency proceedings if the application for insolvency is admissible and justified.

If a natural person applies for insolvency and does not have sufficient assets to finance the insolvency proceedings, it may be possible to apply for a deferral of the costs of the proceedings (read Deferral of procedural costs in insolvency proceedings).

Once the insolvency court has completed its examination and determined that the application is admissible and well-founded, and it is likely that the insolvency proceedings will be financed by the insolvency estate or secured by a deferral of procedural costs, the insolvency proceedings will be opened by order.

Application for the opening of insolvency proceedings and, if applicable, further documents

• Application for the opening of insolvency proceedings
  • Application is admissible
  • Application is well-founded; the main point of examination here is that there is a reason for opening insolvency proceedings

The following may be considered as grounds for opening proceedings:

• • insolvency
  • possibly over-indebtedness
  • Impending insolvency, if applicable
• Future insolvency assets can probably finance the costs of the insolvency proceedings (or deferral of the costs of the proceedings is granted upon application)

• Insolvency proceedings are opened by court order
• Prerequisite is an admissible and substantiated application
• The application is justified in particular if there are grounds for opening insolvency proceedings
• In particular, insolvency and over-indebtedness are grounds for opening insolvency proceedings

Application for the opening of insolvency proceedings