Opening decision insolvency proceedings

Insolvency proceedings are opened by a court order if an admissible and reasoned application for the opening of insolvency proceedings has been filed.

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

This request must be admissible and well founded.

In the context of the admissibility of an insolvency application, the insolvency court examines in particular whether the person or persons who signed the application were entitled to do so.

  • In the case of legal entities (e.B corporations or registered associations), any legal representation (managing director, board member),
  • in the case of a legal person, in the case of lack of leadership, each shareholder,
  • in the case of a stock corporation or a cooperative, any member of the Supervisory Board also submits an application,
  • in the case of companies without legal personality (e.B. OHG or KG), each personally liable partner is individually entitled to:

to submit the self-application for the legal entity, even if he is otherwise only authorized to represent together with other persons. In addition, in the case of an application by shareholders of a legal entity or member of the Supervisory Board, the lack of leadership must also be made credible. In the case of a self-application due to imminent insolvency, special features apply.

The essential aspect for the probity of the insolvency application is the question of whether there is a reason for opening. As opening reasons come both in the own and in the third-party application

  • insolvency (§ 17 InsO) and
  • (only for legal persons) Over-indebtedness (§ 18 InsO)

in consideration.

In the case of a self-application, the opening reason is also the

  • imminent insolvency (§ 19 InsO)

in consideration.

In addition, an insolvency application is only opened in the case of a permissible and justified insolvency application if the future insolvency estate is likely to be able to finance the costs of the insolvency proceedings.

If a natural person submits a personal application and there is insufficient assets to finance the insolvency proceedings, it may be possible to file an application for deferral of the costs of the proceedings (see "Deferral of procedural costs in insolvency proceedings").

If the insolvency court has completed its examinations and determined that there is an admissible and reasoned application and the financing of the insolvency proceedings by the insolvency estate is probable or secured by a deferral of procedural costs, the opening of insolvency proceedings shall be effected by order.

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

Forms/online services available: Yes

Written form required: Yes

Informal application possible: No

Personal appearance necessary: No

No form requirement due to § 13 sec. 4 sentence 1 InsO for standard insolvency proceedings. Lower Saxony provides its own forms for voluntary use.

For consumer insolvency proceedings, on the other hand, there is a form requirement, § 305 para. 1 sentence 1 InsO in conjunction with .m Ordinance on the Introduction of Forms for Consumer Insolvency Proceedings and residual debt discharge proceedings (Consumer Insolvency Form Ordinance VbrInsFV).

Related Links

  • Forms on insolvency law

Preconditions

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

The following may be considered as the opening grounds:

    • Insolvency
    • if necessary, over-indebtedness
    • if applicable, imminent insolvency
  • Future insolvency estate can probably finance costs of insolvency proceedings (or deferral of procedural costs will be granted on application)
  • Justice Portal Lower Saxony

Related Links

  • §§ 16 ff. Insolvency Code (InsO)

If an insolvency application is received by an insolvency court, the insolvency court examines in a so-called insolvency opening procedure whether this application is admissible and justified. Furthermore, it is being examined whether the future insolvency estate is likely to be able to finance the costs of the insolvency proceedings.

If the insolvency court has completed its examinations and determined that there is an admissible and reasoned application and the financing of the insolvency proceedings by the insolvency estate is probable or secured by a deferral of procedural costs, the opening of insolvency proceedings shall be effected by order.

Responsible for the content
Lower Saxony Ministry of Justice

Last update or date of publication
01.11.2021