Part Seven – Self-administration

contrary is made in this Part. The provisions of

tax consultant, auditor, lawyer or other compara-

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this Part are not applicable to consumer insol-

bly qualified person experienced in insolvency

vency proceedings under section 304.

matters attesting that the debtor faces immi-

(2)

An order for self-administration requires that

nent illiquidity or overindebtedness but is not il-

1. it is applied for by the debtor and

liquid and that the planned restructuring does

2. no circumstances are known which suggest

not clearly lack any prospect of success.

that the order will result in prejudice to the

(2)

In the order pursuant to subsection (1) the court

creditors.

shall appoint a preliminary supervisor pursuant

(3)

Prior to the decision on the application, the pre-

to section 270a (1) who cannot be the same per-

liminary creditors’ committee shall be given the

son as the person who issues the statement pur-

opportunity to make representations if this will

suant to subsection (1). The court may deviate

not clearly lead to a prejudicial change in the

from the debtor’s proposal only if the proposed

debtor’s financial position. If the application is

person is clearly unsuitable for the role; the court

supported by a unanimous resolution of the pre-

shall give reasons for its decision. The court may

liminary creditors’ committee, the order shall be

order interim measures pursuant to section 21 (1)

deemed not to be prejudicial to the creditors.

and (2) number 1a and (3) to (5); the court must

(4)

If the application is refused, written reasons for

order measures pursuant to section 21 (2) num-

the refusal shall be given; section 27 (2) number 4

ber 3 if the debtor applies for this.

applies with the necessary modifications.

(3)

On application by the debtor the court must de-

cree that the debtor is creating preferential liabil-

Section 270a – Preliminary Insolvency Proceedings

ities. Section 55 (2) applies with the necessary

(1)

If the debtor’s application for self-administration

modifications.

does not clearly lack any prospect of success, dur-

(4)

The court shall revoke the order made pursuant

ing the preliminary insolvency proceedings the

to subsection (1) prior to expiry of the time al-

court shall refrain from

lowed if

1. imposing a general prohibition of disposal on

1. the planned restructuring no longer has any

the debtor or

prospect of success;

2. ordering that all disposals by the debtor shall

2. the preliminary creditors’ committee applies

be effective only with the approval of a prelimi-

for revocation of the order or

nary insolvency administrator.

3. a creditor entitled to separate satisfaction or

In this case, instead of the preliminary insolvency

an insolvency creditor applies for revocation of

administrator a preliminary supervisor shall be

the order and circumstances become known

appointed to whom sections 274 and 275 are

which suggest that the order will result in pre-

applicable with the necessary modifications.

judice to the creditors; the application is admis-

(2)

If the debtor has submitted the application for

sible only if no preliminary creditors’ committee

commencement of insolvency proceedings in the

has been appointed and the applicant proves the

case of imminent illiquidity and applied for self-

circumstances to the satisfaction of the court.

administration, but the court regards the re-

The debtor or the preliminary supervisor must

quirements for self-administration as not being

notify the court without delay in the event of illi-

fulfilled, the court shall advise the debtor of its

quidity occurring. After the order has been

concerns and give the debtor the opportunity to

revoked or after expiry of the time allowed for

withdraw the application for commencement of

submission of an insolvency plan, the court shall

insolvency proceedings prior to the decision on

decide on commencement of insolvency

commencement.

proceedings.

Section 270b – Preparation for Restructuring

Section 270c – Appointment of the Supervisor

(1)

If the debtor has submitted the application for

When self-administration is ordered, a supervisor

commencement of insolvency proceedings in the

shall be appointed in place of the insolvency

case of imminent illiquidity or overindebtedness

administrator. The claims of the insolvency credi-

and applied for self-administration, and if the

tors shall be submitted to the supervisor. Sec-

planned restructuring does not clearly lack any

tions 32 and 33 are not applicable.

prospect of success, on application by the debtor

Commentary:

the insolvency court shall fix a period of time for

submission of an insolvency plan. The time al-

The following section 270d will be inserted

lowed shall amount to no more than three

with effect as of 21 April 2018 by the Act for

months. Along with the application the debtor

F a c i l i t a t i n g t h e H a n d l i n g o f G r o u p

must submit a substantiated statement from a

supervisor to be effective. Section 81 (1) sentences

(2)

The debtor shall present the report at the report

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2 and 3 and section 82 apply with the necessary

meeting. The supervisor shall comment on the

modifications. If the supervisor approves the cre-

report.

ation of a preferential liability, section 61 shall ap-

(3)

The debtor is obliged to present accounts (sec-

ply with the necessary modifications.

tions 66 and 155). Subsection (1) sentence 2 ap-

(2)

The order may also be issued on application by a

plies with the necessary modifications to the fi-

creditor entitled to separate satisfaction or an in-

nal presentation of accounts by the debtor.

solvency creditor if it is required without delay in

Section 282 – Realisation of Collateral

order to avoid prejudice to the creditors. The ap-

plication shall be admissible only if this require-

(1)

The right of the insolvency administrator to realise

ment is proved to the satisfaction of the court.

assets subject to rights to separate satisfaction is

(3)

The order shall be published. Section 31 applies

vested in the debtor. The costs of assessment of

with the necessary modifications. Insofar as the

the assets and of determining the rights in these

right to dispose of a plot of land, a registered

assets shall, however, not be charged. Only the

ship, ship under construction or aircraft or a right

costs actually and necessarily incurred for realisa-

in such an object, or a right in such a right is re-

tion of the assets and the amount of the value

stricted, sections 32 and 33 shall apply with the

added tax shall be recognised as realisation costs.

necessary modifications.

(2)

The debtor shall exercise its realisation right in

Section 278 – Funds for the Debtor’s Living Expenses

agreement with the supervisor.

Section 283 – Satisfaction of Insolvency Creditors

(1)

The debtor is entitled to withdraw funds for him-

self/herself and the family members specified in

(1)

During the verification of claims, claims filed may

section 100 (2) sentence 2 from the insolvency

be disputed by the debtor and the supervisor as

estate that permit a modest standard of living,

well as by the insolvency creditors. A claim dis-

taking into account the debtor’s previous

puted by an insolvency creditor, the debtor or the

lifestyle.

supervisor is not considered as accepted.

(2)

If the debtor is not a natural person, subsection

(2)

Distributions shall be carried out by the debtor.

(1) shall apply with the necessary modifications

The supervisor shall review the distribution

to the debtor’s general partners with authority

schedules and in each case state in writing

to represent the debtor.

whether the result of his/her review gives rise to

Section 279 – Reciprocal Contracts

any objections.

Section 284 – Insolvency Plan

The provisions on the performance of transac-

tions and the co-operation of the works council

(1)

An instruction from the creditors’ meeting to pre-

(sections 103 to 128) shall apply subject to the

pare an insolvency plan shall be addressed either

proviso that the debtor takes the place of the

to the supervisor or to the debtor. If the instruc-

insolvency administrator. The debtor shall exer-

tion is addressed to the debtor, the supervisor

cise its rights under these provisions in agree-

shall assist in an advisory capacity.

ment with the supervisor. The debtor can validly

(2)

It is the duty of the supervisor to monitor imple-

exercise the rights pursuant to sections 120, 122

mentation of the plan.

and 126 only with the supervisor’s approval.

Section 285 – Deficiency of Assets

Section 280 – Liability. Avoidance in Insolvency

The supervisor shall notify the insolvency court

Only the supervisor may assert a claim of liability

of a deficiency of assets.

on behalf of the insolvency estate pursuant to

Part Eight – Discharge of Residual Debt

sections 92 and 93 and avoid legal acts pursuant

to sections 129 to 147.

Commentary:

Section 281 – Provision of Information to the

Part Eight will become Part Nine with effect

Creditors

as of 21 April 2018 as a result of the Act for

(1)

The debtor shall draw up the list of assets of the

Facilitating the Handling of Group Insolven-

insolvency estate, the list of creditors and the

cies (Gesetz zur Erleichterung der Bewälti-

statement of assets and liabilities (sections 151 to

gung von Konzerninsolvenzen) (as published

153). The supervisor shall review the lists and the

in the Federal Law Gazette, see BGBl. I 2017,

statement of assets and liabilities and in each

p. 866).

case state in writing whether the result of his/

or subsequent to the application the debtor has

provided the costs of the proceedings deferred

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intentionally or through gross negligence pro-

pursuant to section 4a less the costs of appoint-

vided incorrect or incomplete written informa-

ment of counsel have been discharged. Section

tion about his/her financial circumstances in

36 (1) sentence 2 and subsection (4) apply with

order to obtain a loan, to receive payments from

the necessary modifications. The trustee may de-

public resources or to avoid payments to public

fer distribution until the end of the assignment

funds;

period at the latest if this appears appropriate in

3. (repealed)

view of the insignificance of the amounts to be

4. during the last three years prior to the appli-

distributed; the trustee must notify the court of

cation for commencement of insolvency pro-

this once a year, stating the level of the amounts

ceedings or subsequent to the application the

received.

debtor has intentionally or through gross negli-

(2)

The creditors’ meeting may also assign to the

gence prejudiced the satisfaction of the insol-

trustee the task of monitoring fulfilment of the

vency creditors by creating inappropriate liabili-

debtor’s obligations. In this case the trustee must

ties, dissipating assets or delaying the

inform the creditors without delay if he/she as-

commencement of insolvency proceedings

certains that the debtor has breached any of

without any prospect of an improvement in his/

these obligations. The trustee is obliged to moni-

her financial position;

tor the debtor’s compliance only if the additional

5. the debtor has intentionally or through gross

remuneration to which he/she is entitled for this

negligence breached obligations of disclosure

is covered or paid in advance.

and co-operation under this Code,

(3)

Upon termination of his/her office the trustee

6. in the lists of his/her assets and income, credi-

shall present accounts to the insolvency court.

tors and the claims against him/her to be sub-

Sections 58 and 59 apply with the necessary

mitted pursuant to the declaration to be submit-

modifications, section 59 with the proviso,

ted under section 287 (1) sentence 3 and pursuant

however, that each insolvency creditor may ap-

to section 305 (1) No 3, the debtor has intention-

ply for the dismissal of the trustee and each

ally or through gross negligence provided incor-

insolvency creditor has the right of immediate

rect or incomplete information,

appeal.

7. the debtor violates his/her obligation to secure

Section 293 – Remuneration of the Trustee

income pursuant to section 287b and thereby

prejudices the satisfaction of the insolvency cred-

(1)

The trustee is entitled to remuneration for his/

itors; this shall not apply if the debtor is not at

her activities and to reimbursement of reasona-

fault; section 296 (2) sentences 2 and 3 apply

ble expenses.

with the necessary modifications.

Account shall be taken of the expenditure of

(2)

The creditor’s application may be made, in writ-

time involved and the scope of activities per-

ing, up to the final meeting or to the decision

formed by the trustee.

pursuant to section 211 (1); it is admissible only if

(2)

Section 63 (2) and sections 64 and 65 apply with

the creditor proves to the satisfaction of the

the necessary modifications.

court that a ground for refusal exists. The deci-

Section 294 – Equal Treatment of Creditors

sion on the application for refusal shall be made

after the relevant point in time pursuant to sen-

(1)

Compulsory enforcement against the debtor’s

tence 1.

assets on behalf of individual insolvency credi-

(3)

The debtor and each insolvency creditor who has

tors is not permitted during the period between

applied for refusal of discharge of residual debt

termination of the insolvency proceedings and

has the right of immediate appeal against the

the end of the assignment period.

order. The order shall be published.

(2)

Any agreement by the debtor or other persons

with individual insolvency creditors creating a

Section 291 (repealed)

preference in favour of such creditors is void.

(3)

Set-off against the claim to the emoluments cov-

Section 292 – Legal Status of the Trustee

ered by the assignment declaration is inadmissible.

(1)

The trustee must notify the parties obliged to

Section 295 – Debtor’s Obligations

pay the emoluments of the assignment. He/she

must keep the amounts he/she receives through

(1)

During the period between termination of the

the assignment and other payments from the

insolvency proceedings and the end of the as-

debtor or third parties separate from his/her as-

signment period the debtor is obliged

sets and distribute them once a year to the insol-

vency creditors on the basis of the final schedule,

Section 299 – Premature Termination

discharge of residual debt at the hearing pursu-

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If the discharge of residual debt is refused pursu-

ant to subsection (1) or who pleaded that the re-

ant to sections 296, 297, 297a or 298, the term of

quirements for early discharge of residual debt

the assignment declaration, the office of the

under subsection (1) sentence were not met has

trustee and the restriction on the creditors’ rights

the right of immediate appeal. If discharge of re-

shall expire when the decision becomes final.

sidual debt is granted pursuant to subsection (1)

sentence 2, sections 299 and 300a apply with the

Section 300 – Decision on Discharge of Residual Debt

necessary modifications.

(1)

If the assignment period has elapsed without

Section 300a – New asset acquisitions in ongoing

premature termination, after hearing the insol-

vency creditors, the insolvency administrator or

insolvency proceedings

the trustee and the debtor, the insolvency court

(1)

If the debtor is granted discharge of residual

shall decide on the grant of discharge of resid-

debt, the assets that the debtor acquires after

ual debt by means of a court order. If the debtor

the end of the assignment period, or after the oc-

has settled the costs of the proceedings, the

currence of the prerequisites of section 300 (1)

court shall decide on the debtor’s application if

sentence 2, no longer form part of the insolvency

1. no insolvency creditor has filed a claim in the

estate. Sentence 1 does not apply to assets re-

proceedings or if the claims of the insolvency

turned to the insolvency estate as a consequence

creditors have been satisfied and the debtor has

of avoidance of a legal act by the insolvency ad-

settled the other preferential liabilities;

ministrator or which belong to the insolvency

2. three years of the assignment period have

estate as a consequence of litigation conducted

elapsed and within this period the insolvency

by the insolvency administrator or as a conse-

administrator or trustee has received an amount

quence of acts of realisation by the insolvency

enabling the claims of the insolvency creditors to

administrator.

be satisfied to the extent of at least 35%; or

(2)

Until the grant of discharge of residual debt has

3. five years of the assignment period have

become final, new asset acquisitions to which

elapsed.

the debtor is entitled must be received and man-

Sentence 1 applies with the necessary modifica-

aged by the administrator in a fiduciary capacity.

tions. A claim will be taken into account for the

After the grant of discharge of residual debt has

purposes of determining the percentage pursu-

become final, the provisions of section 89 do not

ant to sentence 2 No 2 if it was included in the

apply. When the grant of discharge of residual

final schedule. In the absence of a final schedule,

debt has become final, the insolvency adminis-

a claim that is deemed to be accepted or a claim

trator shall hand over the new asset acquisitions

in respect of which the creditor has raised an

to the debtor and render an account to the

action for declaratory judgment or resumed pro-

debtor of his/her management of the new asset

ceedings in an earlier pending case pursuant to

acquisitions.

section 189 (1) will be taken into account.

(3)

If discharge of residual debt is granted and has

(2)

In the cases in subsection (1) sentence 2 No 2 the

become final, the insolvency administrator has a

application is admissible only if information is

claim against the debtor for remuneration for

provided on the origin of the funds that have

his/her services pursuant to subsection (2) and for

been transferred to the trustee which exceed

reimbursement of reasonable expenses. Section

the amounts covered by the assignment decla-

293 applies with the necessary modifications.

ration. The debtor must declare that the infor-

Section 301 – Effect of Discharge of Residual Debt

mation provided pursuant to sentence 1 is accu-

rate and complete. The debtor must prove to

(1)

If discharge of residual debt is granted, it takes

the satisfaction of the court that the prere-qui-

effect against all insolvency creditors. This also

sites of subsection (1) sentence 2 Nos 1 to 3 are

applies in respect of creditors who have not filed

met.

their claims.

(3)

The insolvency court shall refuse the discharge

(2)

The rights of the insolvency creditors against co-

of residual debt on application by an insolvency

debtors and sureties of the debtor and the rights

creditor if the prerequisites of section 290 (1),

of these creditors under a priority notice regis-

section 296 (1) or (2) sentence 3, section 297 or

tered to secure a claim or under a right giving

section 297a are met, or on application by the

entitlement to separate satisfaction in insol-

trustee if the prerequisites of section 298 are

vency proceedings are not affected by the dis-

met.

charge of residual debt. The debtor is, however,

(4)

The order shall be published. The debtor and each

discharged vis-à-vis his/her co-debtors, sureties

insolvency creditor who applied for refusal of

or any other party holding a right of recourse in

ployed economic activity, sentence 1 shall apply if

The debtor’s request must contain a reference to

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his/her financial circumstances are straightfor-

an application for commencement of insolvency

ward and there are no claims against him/her

proceedings that has already been submitted to

under employment contracts.

the court or to an application planned for the

(2)

Financial circumstances are straightforward

near future.

within the meaning of subsection (1) sentence 2

(3)

If information is missing from the official forms

only if, at the time when the application for com-

pursuant to subsection (5) that the debtor has

mencement of insolvency proceedings is submit-

submitted, the insolvency court shall request the

ted, the debtor has fewer than 20 creditors.

debtor to provide the missing information with-

out delay. If the debtor does not comply with this

Section 305 – Debtor’s Application for Commence-

request within one month, his/her application

ment of Insolvency Proceedings

for commencement of insolvency proceedings

(1)

Along with the written application for com-

shall be deemed to have been withdrawn. In

mencement of insolvency proceedings or with-

cases coming under section 306 (3) sentence 3,

out delay following the application, the debtor

the period shall be three months.

must submit:

(4)

The debtor may be represented before the insol-

1. a certificate issued by an appropriate person or

vency court by an appropriate person or member

body based on personal counselling and a

of a body recognised as appropriate within the

detailed examination of the debtor’s income and

meaning of subsection (1) No. 1. Section 174 (1)

assets stating that within the last six months

sentence 3 applies with the necessary modifica-

prior to the application for commencement of

tions to representation of the creditor.

insolvency proceedings an unsuccessful attempt

(5)

In order to simplify consumer insolvency pro-

was made to reach an out-of-court debt settle-

ceedings, the Federal Ministry of Justice and Con-

ment agreement with the creditors on the basis

sumer Protection is authorised to introduce

of a plan; the plan shall be attached and the prin-

forms for the parties concerned for the certifi-

cipal reasons for its failure shall be explained; the

cates, applications, and lists to be submitted in

Federal States may determine which persons or

accordance with subsection (1) Nos 1 to 4 by

bodies are to be regarded as appropriate;

means of statutory order issued with the ap-

2. the application for discharge of residual debt

proval of the Bundesrat. Insofar as forms are in-

(section 287) or a declaration that an applica-

troduced pursuant to sentence 1, the debtor must

tion for discharge of residual debt is not to be

use these forms. Different forms may be intro-

made;

duced for proceedings in courts where the pro-

3. a list of available assets and income (list of

ceedings are processed electronically and for pro-

assets), a summary of the main content of this

ceedings in courts where the proceedings are not

list (statement of assets and liabilities), a list of

processed electronically.

creditors and a list of the claims against the

debtor; a declaration must be attached to the

Commentary:

lists and to the statement of assets and liabilities

stating that the information they contain is accu-

Subsection (5) was amended with effect as of

rate and complete;

26 June 2017 by the Act implementing Regu-

4. a debt settlement plan; this may include all

lation 2015/848 on Insolvency Proceedings

arrangements which, taking account of the credi-

(Gesetz zur Durchführung der VO 2015/848

tors’ interests and the debtor’s assets, income

über Insolvenzverfahren) (as published in the

and family circumstances, are likely to lead to a

Federal Law Gazette, see BGBl. I 2017, p. 1476).

reasonable debt settlement; the plan shall also

state whether and to what extent guarantees,

liens and other creditors’ securities are to be

Section 305a – Failure of Out-of-Court Debt

affected by the plan.

Settlement

(2)

In the list of claims pursuant to subsection (1) No.

An attempt to reach an out-of-court debt settle-

3 reference may also be made to enclosed itemi-

ment agreement with the creditors shall be

sations of claims by the creditors. At the debtor’s

deemed to have failed if a creditor pursues com-

request the creditors are obliged to provide the

pulsory enforcement after the negotiations on

debtor with a written itemisation of their claims

out-of-court debt settlement have been

against him/her at their expense to enable him/

initiated.

her to prepare the list of claims; they must, in

particular, state the amount of their claims bro-

ken down into principal claim, interest and costs.

Insolvency and Restructuring in Germany – Yearbook 2018

of discharge of residual debt had been con-

Part Ten – Special Types of Insolvency

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ducted; in case of doubt the income, assets and

Proceedings

family circumstances of the debtor applicable at

the time of the application pursuant to sentence

Commentary:

1 shall be taken as a basis throughout the dura-

Part Ten will become Part Eleven with effect

tion of the proceedings.

as of 21 April 2018 as a result of the Act for

(2) The creditor shall be heard prior to the decision.

Facilitating the Handling of Group Insolven-

The reasons pursuant to subsection (1) sentence 2

cies (Gesetz zur Erleichterung der Bewälti-

opposing the substitution of the creditor’s objec-

gung von Konzerninsolvenzen) (as published

tions with approval must be demonstrated to

in the Federal Law Gazette, see BGBl. I 2017,

the satisfaction of the court. The applicant and

p. 866).

the creditor whose objections have been substi-

tuted with approval have the right of immediate

Chapter One – Insolvency Proceedings Relating

appeal against the order. Section 4a (2) applies

with the necessary modifications.

to a Deceased’s Estate

(3) If a creditor credibly establishes facts which give

rise to serious doubts as to whether a claim

Section 315 – Local Jurisdiction

stated by the debtor exists or is for a higher or a

The insolvency court within whose district the

lower amount than stated and if the outcome of

deceased had his/her place of general jurisdic-

the dispute is decisive with regard to whether

tion at the time of his/her death has exclusive

the creditor receives a fair share in relation to the

local jurisdiction in respect of insolvency pro-

other creditors (subsection (1) sentence 2 No. 1),

ceedings relating to a deceased’s estate. If the

the objections of this creditor cannot be substi-

centre of a self-employed economic activity car-

tuted with approval.

ried on by the deceased was located in a different

Section 310 – Costs

place, the insolvency court within whose district

this place is located has exclusive jurisdiction.

The creditors do not have a claim against the

debtor for reimbursement of the costs incurred

Section 316 – Admissibility of Commencement

by them in connection with the debt settlement

(1)

Commencement of insolvency proceedings is not

plan.

excluded by reason of the fact that the heir has

Section 311 – Resumption of Proceedings Relating to

not yet accepted the inheritance or that he/she

has unlimited liability for the liabilities of the

the Application for Commencement of Insol-

estate.

vency Proceedings

(2)

If there are several heirs, proceedings may also be

If objections to the debt settlement plan are

commenced subsequent to division of the

raised that are not substituted with court

estate.

approval pursuant to section 309, the proceedings

(3)

Insolvency proceedings shall not take place in re-

relating to the application for commencement of

spect of a share in an inheritance.

insolvency proceedings are resumed ex officio.

Section 317 – Parties Entitled to Apply for

Section 312 (repealed)

Commencement

Section 313 (repealed)

(1)

Commencement of insolvency proceedings relat-

ing to a deceased’s estate may be applied for by

Section 314 (repealed)

any heir, the administrator of the estate or any

other curator of the estate, an executor entitled

to manage the estate and any creditor of the

estate.

(2)

If the application is not submitted by all the heirs,

it shall be admissible if the ground for com-

mencement is demonstrated to the satisfaction

of the court. The insolvency court shall hear the

other heirs.

(3)

Where an executor is entitled to manage the es-

tate, if the heir applies for commencement of

3. (repealed)

respect of any other liability of the estate unless

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(2)

A legacy through which the right of the benefi-

he/she has unlimited liability or an order subject-

ciary to the compulsory portion is excluded pur-

ing the estate to administration is issued. Sec-

suant to section 2307 of the Civil Code [Bürgerli-

tions 323, 324 (1) No. 1 and section 326 shall apply

ches Gesetzbuch] has the same ranking as the

to the heirs even after the sale of the

right to a compulsory portion insofar as it does

inheritance.

not exceed the compulsory portion. If the de-

(3)

Subsections (1) and (2) shall apply with the neces-

ceased instructed by testamentary disposition

sary modifications in the event that a party sells

that a legacy or testamentary burden should be

an inheritance acquired by contract or has placed

satisfied before another legacy or testamentary

himself/herself under an obligation in another

burden, such legacy or testamentary burden shall

way to sell an inheritance which has devolved on

have prior ranking.

him/her or which he/she has otherwise

(3)

A liability due to a creditor excluded by means of

acquired.

the public notice procedure or having the same

Section 331 – Simultaneous Insolvency of the Heir

status as an excluded creditor pursuant to sec-

tion 1974 of the Civil Code [Bürgerliches Gesetz-

(1)

In insolvency proceedings relating to the assets

buch] shall be satisfied only after the liabilities

of the heir, sections 52, 190, 192, 198 and 237 (1)

specified in section 39 and, if this liability is in-

sentence 2 apply with the necessary modifica-

cluded in the liabilities specified in subsection (1),

tions to creditors of the estate to whom the heir

only after the liabilities with which it would have

has unlimited liability if insolvency proceedings

equal ranking without the restriction. The restric-

are also commenced in respect of the deceased’s

tions shall not affect the order of ranking in other

estate or if an order subjecting the estate to ad-

respects.

ministration is issued.

(2)

The same shall apply if one spouse is the heir and

Section 328 – Returned Assets

the deceased’s estate forms part of the joint mar-

(1)

Assets returned to the insolvency estate as a con-

ital property which is managed by the other

sequence of the avoidance of a legal act under-

spouse alone, including in insolvency proceed-

taken by or in relation to the deceased may not

ings relating to the assets of the other spouse

be used for settlement of the liabilities specified

and, if the joint marital property is jointly man-

in section 327 (1).

aged by the spouses, including in insolvency pro-

(2)

Assets which have to be returned to the insol-

ceedings relating to the joint marital property

vency estate by the heir on the basis of sections

and in insolvency proceedings relating to the

1978 to 1980 of the Civil Code [Bürgerliches Ge-

other assets of the spouse who is not the heir.

setzbuch] may by claimed by the creditors ex-

Sentence 1 applies with the necessary modifica-

cluded by means of the public notice procedure

tions to life partners.

or having the same status as an excluded credi-

Chapter Two – Insolvency Proceedings Relating

tor pursuant to section 1974 of the Civil Code

[Bürgerliches Gesetzbuch] only insofar as the heir

to the Joint Marital Property of a Continued

would also be liable to make restitution pursu-

Community of Property

ant to the provisions on the restitution of unjust

enrichment.

Section 332 – Reference to Insolvency Proceedings

Section 329 – Subsequent Succession

Relating to a Deceased’s Estate

(1)

In the case of continued community of property,

Sections 323, 324 (1) No. 1 and section 326 (2) and

sections 315 to 331 apply with the necessary modi-

(3) apply to the prior heirs even after the occur-

fications to insolvency proceedings relating to

rence of subsequent succession.

the joint marital property.

Section 330 – Purchase of an Inheritance

(2)

Only those creditors whose claims already ex-

isted as obligations on the joint marital property

(1)

If the heir has sold the inheritance the purchaser

when the continuation of community of prop-

shall take his/her place in the insolvency

erty occurred are insolvency creditors.

proceedings.

(3)

The descendants entitled to a share are not enti-

(2)

The heir is entitled to apply for commencement

tled to apply for commencement of proceedings.

of insolvency proceedings like a creditor of the

They shall, however, be heard by the insolvency

deceased’s estate with respect to a liability of the

court in relation to an application for commence-

estate to be settled by the purchaser on the basis

ment of insolvency proceedings.

of the relationship between the heir and the pur-

chaser. He/she shall also have the same right in