Notwendigkeit und Wirkungsweise unechter Massedarlehen zur Finanzierung der Betriebsfortführung

2021 ◽  
Author(s):  
Philipp Knauth
Keyword(s):  
Critical Period ◽  
Insolvency Proceedings ◽  
Secured Creditors

Continuation of companies as going concerns under insolvency conditions requires liquidity, in particular during the critical period of interim proceedings. In this regard, the author looks at the usual German practice of allowing the debtor to realise and use the proceeds of collateral for interim financing in exchange for new collateral (so called „unechte Massedarlehen“ or interim financing using and exchanging collateral). He examines whether the current law requires the need of secured creditors to specifically agree to such use and, if so, explains the content of such agreements. The compendium is aimed primarily at legal practitioners who are concerned with relevant financing issues after an insolvency proceedings has been commenced.

10 National Report for Germany

2016 ◽  
Author(s):  
Paulus Christoph G ◽  
Berberich Matthias
Keyword(s):  
Insolvency Law ◽  
National Report ◽  
Participation Rights ◽  
The Law ◽  
Insolvency Proceedings ◽  
Secured Creditors

This chapter discusses the law on creditor claims in Germany. German insolvency law distinguishes between several types of creditors in insolvency proceedings and treats them differently with regard to priority of claims, enforcement, modes of realization, and costs. The doctrinal approach of the German Insolvency Code is not so much a categorization of claims, but rather it takes a view on the creditors. German insolvency law draws a rough distinction between four creditor groups: secured creditors; general insolvency creditors; subordinated creditors; and administration creditors. The remainder of the chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.

scholarly journals Tort Victim’s Ability To Profit From The Proceeds Of Insolvent Tortfeasor’s Liability Insurance

2020 ◽  
Vol 5 (1) ◽  
pp. 31
Author(s):  
Yasser Mandela ◽  
I Ketut Dharma Putra Yoga
Keyword(s):  
Comparative Research ◽  
Civil Law ◽  
Legal Protection ◽  
Liability Insurance ◽  
Insurance Policy ◽  
The Third ◽  
The United Kingdom ◽  
The Status ◽  
Insolvency Proceedings ◽  
Secured Creditors

<em>This article describes and examines whether the tort victim can profit from the proceeds of the tortfeasor’s liability insurance. This article aims to reflect on which approach, either in common or civil law, provides more access for the tort victim to profits from the proceeds of insolvent tortfeasor’s liability insurance policy. The method used in this research is comparative research. The result of this research showed that the status of insurance proceeds becomes debatable because the tort victim (as the claimant) will have no better rights than any other unsecured creditors during insolvency proceedings. This is regardless of the fact that the tortfeasor already got a fund, albeit indirectly through the insurer, to compensate the tort victim’s losses. In relation to this issue, the United Kingdom has adopted the Third Parties (Rights against Insurers) Act 2010 which gives right for tort victim to directly claim for compensation against tortfeasor’s liability insurer in the event of tortfeasor’s insolvency. Meanwhile, the Indonesian legal system provides no clear legal protection to the tort victim. Thus, in the event of insolvency, the tort victim cannot obtain compensation from the insurer, but only from tortfeasor’s bankruptcy estate as part of creditors’ debts. Furthermore, as an unsecured creditor, the tort victim will obtain the debtor’s bankruptcy estate after all secured creditors have received their payment.</em>

scholarly journals 12 National Report for the Netherlands

2016 ◽  
Author(s):  
Faber Dennis ◽  
Vermunt Niels
Keyword(s):  
The Netherlands ◽  
National Report ◽  
Participation Rights ◽  
The Law ◽  
Insolvency Proceedings ◽  
Secured Creditors

This chapter discusses the law on creditor claims in the Netherlands. It deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings. In essence, holders of insolvency claims (‘insolvency creditors’) are entitled to the liquidation proceeds of the debtor’s insolvency estate after the full discharge of the administration claims. Insolvency creditors (except secured creditors) can only pursue payment by submitting their claims for admission in the proceedings. Administration claims have to be satisfied in priority to insolvency claims and need not be submitted in the claims verification procedure. Holders of such claims (‘administration creditors’) can take recourse against assets comprised in the insolvency estate. Holders of non-enforceable claims can only seek recourse after the insolvency proceedings are terminated (provided that the debtor continues to exist).

The Effect of the Regulation on Cross-Border Security and Quasi-Security

2016 ◽  
Author(s):  
Stuart Isaacs ◽  
Felicity Toube ◽  
Nick Segal ◽  
Jennifer Marshall
Keyword(s):  
Border Security ◽  
Cross Border ◽  
The Cross ◽  
Insolvency Proceedings ◽  
The Impact ◽  
Secured Creditors

This chapter examines the impact of insolvency proceedings recognized by the Regulation on the rights of secured creditors, particularly the rights of such creditors to enforce their security and participate in the relevant insolvency proceedings. It also considers the impact of the Regulation on banks which hold security/quasi-security, addressing in particular the cross-frontier security rights of banks which hold security over the assets of companies or persons who enter into insolvency proceedings regulated by the Regulation, and the effect of those insolvency proceedings on the banks’ security interests. The chapter identifies those Articles of the Regulation which are particularly relevant to the position of a bank as a secured creditor, addresses the interpretation of those provisions (including the identification of difficult points of construction), and considers the practical aspects and the issues which are likely to face banks seeking to enforce security following the Regulation coming into force.

19 National Report for the United States

2016 ◽  
Author(s):  
Kilborn Jason
Keyword(s):  
United States ◽  
The United States ◽  
Bankruptcy Law ◽  
The Us ◽  
Bankruptcy Procedure ◽  
Bankruptcy Code ◽  
Insolvency Proceedings ◽  
Special Priority ◽  
Academic Debate ◽  
Secured Creditors

This chapter discusses the law on creditor claims in the United States. There is nothing particularly remarkable about the way in which the US Bankruptcy Code and Federal Rules of Bankruptcy Procedure deal with the treatment of various claims. The academic debate about the super-priority of secured claims with regard to the collateral securing those claims has more or less subsided, as legislators have remained unmoved by any argument to reduce or constrain the rights of secured creditors beyond the existing constraints of bankruptcy law. Legislators have also resisted efforts to decrease the number of claims afforded special priority over general unsecured claims. The remainder of the chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each part presents: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.

scholarly journals TORT VICTIM’S ABILITY TO PROFIT FROM THE PROCEEDS OF INSOLVENT TORTFEASOR’S LIABILITY INSURANCE

2020 ◽  
Vol 5 (1) ◽  
pp. 31
Author(s):  
Yasser Mandela ◽  
I Ketut Dharma Putra Yoga
Keyword(s):  
Comparative Research ◽  
Civil Law ◽  
Legal Protection ◽  
Liability Insurance ◽  
Insurance Policy ◽  
The Third ◽  
The United Kingdom ◽  
The Status ◽  
Insolvency Proceedings ◽  
Secured Creditors

<p><em>This article describes and examines whether the tort victim can profit from the proceeds of the tortfeasor’s liability insurance. This article aims to reflect on which approach, either in common or civil law, provides more access for the </em><em>tort</em><em> victim to profits from the proceeds of insolvent tortfeasor’s liability insurance policy. The method used in this research is comparative research. The result of this research showed that the status of insurance proceeds becomes debatable because the tort victim (as the claimant) will have no better rights than any other unsecured creditors during insolvency proceedings. This is regardless of the fact that the tortfeasor already got a fund, albeit indirectly through the insurer, to compensate the</em><em> tort</em><em> victim’s losses.</em><em> </em><em>In relation to this issue, the United Kingdom has adopted the Third Parties (Rights against Insurers) Act 2010 which gives right for tort victim to directly claim for compensation against tortfeasor’s liability insurer in the event of tortfeasor’s insolvency. </em><em>Meanwhile,</em><em> the Indonesian legal system provide</em><em>s</em><em> no clear legal protection to the tort victim. Thus, in the event of insolvency, the tort victim cannot obtain compensation from the insurer, but only from tortfeasor’s bankruptcy </em><em>estate</em><em> as part of creditors’ debts. Furthermore, as an unsecured creditor, the</em><em> tort</em><em> victim will obtain the debtor’s bankruptcy estate after all secured creditors have received their payment. </em><em></em></p>

3 National Report for Belgium

2016 ◽  
Author(s):  
Fransis Roel
Keyword(s):  
National Report ◽  
Participation Rights ◽  
The Law ◽  
Insolvency Proceedings ◽  
Secured Creditors

This chapter discusses the law on creditor claims in Belgium. Legislators have limited the power of secured creditors to take individual enforcement actions with regard to their collateral, notwithstanding the opening of insolvency proceedings. For bankruptcy proceedings, the Bankruptcy Act of 8 August 1997 (BA) introduced a ‘cooling-off period’, imposing a temporary stay on individual enforcement actions by secured creditors. For judicial reorganization proceedings, the 31 January 2009 Act on the Continuity of Enterprises (BCA) imposes a general stay on enforcement actions, which also affects secured and preferential creditors. The remainder of the chapter looks into insolvency claims, administration claims, and non-enforceable claims in turn. Each part covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.

Part V Enforcement, 20 Enforcement of Security in Insolvency

2018 ◽  
Author(s):  
Beale Hugh ◽  
Bridge Michael ◽  
Gullifer Louise ◽  
Lomnicka Eva
Keyword(s):  
Legal Systems ◽  
Secured Debt ◽  
English Law ◽  
Insolvency Proceedings ◽  
Secured Creditors

This chapter discusses the enforcement of security once formal insolvency proceedings have supervened. It deals primarily with liquidation, administration, and receivership but takes in also other procedures, such as schemes of arrangement, to the extent that they affect the rights of secured creditors. A key feature of English law, in contrast with numerous other legal systems, is that the onset of bankruptcy or company liquidation does not remove the power of a secured creditor to exercise proprietary remedies for the recovery of the secured debt. In addition to consensual security, namely, mortgage, charge, and pledge, liens arising by operation of law may be exercised against a liquidator or trustee in bankruptcy, who may not therefore obtain possession of the assets without discharging the underlying obligation.

17 National Report for Spain

2016 ◽  
Author(s):  
Tirado Ignacio
Keyword(s):  
Civil Code ◽  
Regulatory Regime ◽  
Insolvency Law ◽  
National Report ◽  
Participation Rights ◽  
The Law ◽  
Insolvency Proceedings ◽  
Secured Creditors

This chapter discusses the law on creditor claims in Spain. Spain’s current insolvency regulatory regime resulted from the reorganization and modernization that took place with the passing of the 2003 Insolvency Law (Ley Concursal). The ranking of claims under the Insolvency Law coexists with a ranking of claims for execution in individual proceedings, regulated in the Civil Code. The Spanish system has been generally respectful of the pre-insolvency entitlements of secured creditors; provides priority for post-commencement financing; and includes different tiers of priorities for certain categories of creditors. The remainder of the chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.

Sign in / Sign up

Export Citation Format

Share Document