Die Kompetenzen innerhalb der GmbH bei der Sanierung im Schutzschirmverfahren

2019 ◽  
Author(s):  
Patrick Wunder
Keyword(s):  
German Law ◽  
Minority Shareholder ◽  
Point Of View ◽  
Company Law ◽  
Insolvency Law ◽  
Strategic Option ◽  
Limited Company ◽  
Insolvency Proceedings

Especially due to the possibility of incorporating measures under company law into an insolvency plan drawn up in protective proceedings pursuant to Section 270b of InsO (Germany’s insolvency regulations), insolvency proceedings have been seen as a strategic option for an insolvent GmbH (the German equivalent of a limited company) since the ESUG (the German law intended to facilitate company restructuring) came into effect in 2012. However, the ‘Suhrkamp’ case has revealed that insolvency proceedings can turn out to be a ‘horror scenario’, particularly from the point of view of a non-executive (minority) shareholder. Whether this is actually the case also depends on the extent to which shareholders can influence a company’s restructuring in insolvency plan proceedings. In this book, the author therefore examines the extent to which there is a shift in the distribution of responsibilities under company law in the respective stages of such insolvency proceedings. He shows that insolvency law should not have comprehensive priority over company law.

Personal Data in Insolvency Proceedings: The Interface between the New General Data Protection Regulation and (German) Insolvency Law

2019 ◽  
Vol 16 (6) ◽  
pp. 724-745
Author(s):  
Ronny Hauck
Keyword(s):  
Data Protection ◽  
German Law ◽  
Personal Data ◽  
Third Party ◽  
Insolvency Law ◽  
General Data Protection Regulation ◽  
General Data ◽  
Data Protection Law ◽  
Principle Of Proportionality ◽  
Insolvency Proceedings

When the General Data Protection Regulation (henceforth: GDPR) came into force, it quickly became clear that the new data protection law would strongly influence many different areas of law. This article deals with the relationship between data protection law and insolvency law, which was hardly considered before the GDPR was adopted. This relationship is particularly relevant where personal data is to be sold as asset in insolvency proceedings. As will be shown, the new data protection law imposes requirements on such data transfers which are very difficult to fulfil. The main problem is that in German law, personal data is not transferable because it is considered part of a subject’s personality. This situation is comparable to German copyright law, since the copyright itself is a non-transferable good. However, just as usage rights in copyright, the rights to use the personal data can be transferred to a third party provided that the requirements of the GDPR are satisfied. This article will comprehensively analyse under which conditions a transfer of such rights would be possible in insolvency proceedings. To create a balanced relationship between data protection law and insolvency law, the principle of proportionality is of crucial importance in this respect.

scholarly journals NIEMIECKA USTAWA O SPÓŁCE Z OGRANICZONĄ ODPOWIEDZIALNOŚCIĄ – NAJNOWSZE ZMIANY

2017 ◽  
Vol 8 (2) ◽  
pp. 191
Author(s):  
Aleksandra Gawrysiak-Zabłocka
Keyword(s):  
German Law ◽  
Limited Liability ◽  
Case Law ◽  
Company Law ◽  
Complex Case ◽  
Limited Liability Company ◽  
The European Union ◽  
Legal Regime ◽  
Limited Company ◽  
German Parliament

The German Private Limited Liability Act – Recent ChangesSummaryThe Gesellschaft mit beschränkter Haftung (GmbH – Private Limited Company) is the most popular organizational form for businesses in Germany – numbering almost one million entities. Nevertheless, few changes had been made since its inception in the late 19th century, leading to complex case law. Moreover, in the famous Centros case the ECJ decided that a businessperson may legally incorporate his or her business anywhere in the European Union, even if this happens for the sole reason of avoiding a stricter national corporate regime. As a result many Germans decided to establish company in U.K. because Ltd. legal regime was by no means more transparent and accessible than the GmbH legal regime (no requirement of minimum share capital). In such a situation, after long discussions, German parliament adopted Gesetz zur Modernisierung des GmbH-Rechts und zur Bekämpfung von Missbräuchen (MoMiG – Law for the Modernisation of the German Limited Liability Company Law and the Prevention of Misuse) which came into force on the 1 November 2008. In the article some of the most important features of the new GmbH-Recht are analyzed. Changes in German law could be an important inspiration for Polish legislator since the discussion on how to make Polish spółka z ograniczoną odpowiedzialnością more competitive and how to prevent abuse of company law is currently underway in our country.

Debt Restructuring in Germany

2018 ◽  
Vol 15 (3) ◽  
pp. 503-515 ◽  
Author(s):  
Reinhard Bork
Keyword(s):  
European Commission ◽  
Majority Vote ◽  
German Law ◽  
Insolvency Law ◽  
Debt Restructuring ◽  
Eu Directive ◽  
Long Time ◽  
Insolvency Proceedings ◽  
The Eu

For a long time, German restructuring and insolvency law had no pre-insolvency restructuring scheme binding on dissenting creditors. Only in opened insolvency proceedings a restructuring plan could be used for debt restructuring. Now the German legislators has taken means to improve German law in three ways: first, by updating the German Bond Act (also known as the German Debenture Act), especially through permitting the change of the bond conditions by a majority vote of the creditors if the conditions allow for such majority vote; second, by improving German insolvency law through the “Act for the Further Simplification of Company Restructuring (ESUG)” which enables the debtor to start early restructuring preparation proceedings (“protective umbrella proceedings”); and, third, by announcing the introduction of new pre-insolvency restructuring proceedings as a reaction to the EU Directive proposed by the European Commission on 22 November 2016.

scholarly journals Corporate Insolvency Proceedings: A Case of Visegrad Four

2016 ◽  
Vol 64 (1) ◽  
pp. 235-243 ◽  
Author(s):  
Zuzana Crhová ◽  
Zuzana Fišerová ◽  
Marie Paseková
Keyword(s):  
Economic Development ◽  
Financial Crisis ◽  
Point Of View ◽  
Insolvency Proceeding ◽  
Insolvency Law ◽  
Economic Slowdown ◽  
Corporate Insolvency ◽  
Insolvency Proceedings ◽  
Legal Entities

Insolvency proceeding and liquidation of bankrupt companies are important topics in days of economic slowdown which affected all economies after financial crisis. This paper aims to find main differences between insolvency proceedings in the countries of Visegrad four. The main goal is to describe insolvency law in member countries and then to compare it from the poin of view of main actors. This comparison can help to find which changes and ideas could be applied to improve and make more effective the Czech insolvency system. The countries of Visegrad four was selected because of their common history and similar economic development. First of all, the legal background of insolvency proceedings which is possible for legal entities in these countries is examined. Then this paper deals with insolvency proceedings from the point of view of their participants – creditors, debtors and insolvency administrator. We have found that insolvency proceedings in these countries are very similar but there is still some inspiration for the Czech insolvency system.

scholarly journals Alternatives to Bankruptcy in South Africa that Provides for a Discharge of Debts: Lessons from Kenya

2019 ◽  
Vol 22 ◽  
pp. 1-34
Author(s):  
Zingaphi Mabe
Keyword(s):  
South Africa ◽  
South African ◽  
The South ◽  
Insolvency Law ◽  
Debt Restructuring ◽  
Wide Range ◽  
Insolvency Proceedings ◽  
National Credit Act

The problems faced by debtors in South Africa is not that there are no alternatives to insolvency proceedings, but that the available alternatives do not provide for a discharge of debt as with a sequestration order, which is ultimately what the debtor seeks to achieve. Debtors in South Africa can make use of debt review in terms of the National Credit Act 34 of 2005 or administration orders in terms of the Magistrates' Court Act 32 of 1944 to circumvent the sequestration process. However, both debt review and administration orders do not provide for a discharge of debt and provide for debt-restructuring only, in order to eventually satisfy the creditor's claims. Attention is given to the sequestration process and the alternatives to sequestration as they relate specifically to the discharge or lack of a discharge of a debtor's debts. The South African law is compared to Kenyan Law. This article seeks to analyse the alternatives to the bankruptcy provisions of the newly enacted Kenyan Insolvency Act 18 of 2015 in order to influence the possible reform of insolvency law in South Africa. Like the South African Insolvency Act, the old Kenyan Bankruptcy Act (Cap 53 of the Laws of Kenya) also did not have alternatives to bankruptcy. The old Kenyan Bankruptcy Act, however, contained a provision on schemes of arrangement and compositions. The Kenyan Insolvency Act now caters for alternatives to bankruptcy and provides a wide range of alternatives to bankruptcy, some of which allow debtors in different financial positions to obtain a discharge.    

scholarly journals THE RESPONSIBILITY OF PERSONS CAUSING DEBTOR’S INSOLVENCY IN THE BILL ON PRE-INSOLVENCY AND INSOLVENCY PROCEEDINGS

2014 ◽  
Vol 8 (1) ◽  
pp. 47-53
Author(s):  
Simona Petrin Gavrilă
Keyword(s):  
The State ◽  
Point Of View ◽  
Legal Person ◽  
Special Mechanism ◽  
Insolvency Proceedings ◽  
Managerial Activity

Insolvency is the state of the debtor’s patrimony characterized by insufficientmonetary funds available for the payment of exigible debts. It may be the consequence ofunfavourable economic circumstances, but also the result of managerial deficiencies of evenfraud.If insolvency is caused by the gross incompetence or the fraud of the debtor’s board ofdirectors, then the syndic judge, by means of the special mechanism created in the insolvencyproceedings, i.e. the joint responsibility action, may include the responsibility of the debtor’smanagers (if the debtor is a legal person) in covering the debtor’s liabilities. From apsychological point of view, such a menacing perspective may bring about a certain control ofthe managerial activity, a certain caution of a bonus pater familias in managing the debtor’saffairs1.

Information Systems Outsourcing

2010 ◽  
pp. 412-427
Author(s):  
Ana André ◽  
Fernanda Sampaio
Keyword(s):  
Information Systems ◽  
Delphi Study ◽  
Service Providers ◽  
Point Of View ◽  
Common View ◽  
Risks And Benefits ◽  
Strategic Option ◽  
On Line ◽  
Great Relevance ◽  
Is Outsourcing

Information Systems (IS) Outsourcing has emerged as a strategic option to be considered and has been increasingly adopted by managers. However, many contracts still fail during their initial years, meaning that Outsourcing has also been subject to strong criticism. There are advantages to Outsourcing but also significant risks associated to it, and the assessment of both is therefore of great relevance for informed decision-making. The objective of this chapter is to determine to what extent a common view about risks and benefits associated to IS Outsourcing is shared by the Portuguese market players: Service Providers, Clients and Opinion Makers. In order to accomplish this, an on-line Delphi study was conducted, combined with the Q-sort technique, which allowed to obtain the perspective of each player on the risks and benefits IS Outsourcing. Comparing these perspectives it was possible to understand that the market players don’t share the same point of view.

The Concept of Insolvency Proceedings

2017 ◽  
Author(s):  
Hamish Anderson
Keyword(s):  
Insolvency Law ◽  
Insolvency Proceedings ◽  
A Company

Insolvency proceedings, whether of a terminal or a reorganizational nature, are the proceedings which can be invoked by or in respect of a company so as to subject its property and affairs to the rules of insolvency law applicable to the administration of an insolvent estate.

National Report for Israel

2013 ◽  
Author(s):  
David Hahn
Keyword(s):  
The Other ◽  
Insolvency Law ◽  
Corporate Reorganization ◽  
National Report ◽  
The Subject ◽  
Insolvency Proceedings

Israel’s insolvency law is trifurcated and is comprised of the Bankruptcy Ordinance, the Companies Ordinance, and the Companies Act. The first of these regulates insolvency proceedings pertaining to individuals, and the other two regulate proceedings pertaining to corporations. The Companies Ordinance deals with corporate liquidation and receivership, and the Companies Act handles corporate reorganization. While certain provisions appear in all three Acts, other provisions appear only in one or two of them. The subject of executory contracts is one of the main matters with respect to which the three Acts differ. The Bankruptcy Ordinance (Pkudat Pshitat Ha-Regel) and the Companies Ordinance (Pkudat Ha-Havarot) address the issue of executory contracts within the context of onerous property. As a result, this legislation covers only the ability of the trustee to release the estate from burdensome, unprofitable contracts.

Latvia

2020 ◽  
Keyword(s):  
Criminal Liability ◽  
Legal Protection ◽  
Legal Person ◽  
Insolvency Law ◽  
Insolvency Proceedings

According to the paragraph 62 part 3 of Latvian Insolvency Law the debtor (legal person) is obliged to file for insolvency proceedings (liquidation) if the debtor is not able to service its debts and it is not possible to file for legal protection procedure (court approved reorganisation) or to reach out of court settlement with creditors. According to Latvian legislation the management of the debtor is criminally liable for hesitation to file insolvency petition and according to the mentioned provisions of Insolvency Law management of a debtor may avoid criminal liability if they try to reach out of court restructuring.

Sign in / Sign up

Export Citation Format

Share Document