The competent insolvency court initiates insolvency proceedings only on request, the so-called insolvency petition. This is an application procedure, which in turn means that no “ex officio insolvency proceedings” (for example, according to § 22 VwVfG) can take place. Let us now take a closer look at who may file for insolvency, who may be obliged to do so and what the minimum content of the application must be.
The basis of insolvency proceedings is the Insolvency Act (InsO) in conjunction with the Code of Civil Procedure (ZPO) and various secondary laws and regulations. According to § 13 (1) sentence 1 InsO, insolvency proceedings are only opened on written request. Responsible for further processing is then the insolvency court according to §§ 2 and 3 of the InsO, which also determines the insolvency administrator.
Creditors and debtors are equally entitled to file the insolvency application (§ 13 (1) sentence 2 InsO). If the debtor – i.e. the insolvent or over-indebted company – files for insolvency, he must enclose a list of all creditors and their claims. Relevant is the status on the day of application.
If the debtor maintains an ongoing business operation, more extensive obligations apply according to § 13 (1) sentence 3 InsO. In the list according to sentence 2, the following particulars in particular shall be clearly highlighted or indicated:
This article does not replace tax or legal advice in an individual case. Facts, current law, jurisdiction, documentation and implementation remain decisive.