Obligation to File for Insolvency and Liability Risks for Corporations
Corporations such as GmbH, AG, or UG play a central role in economic life. However, the multitude of legal requirements, especially in times of crisis, regularly presents significant challenges for management. In particular, the insolvency-related notification and filing obligations pose considerable legal risks for the acting bodies and indirectly also for shareholders. Correct assessment of the economic situation and proper filing are essential elements to uphold corporate fiduciary duties.
Legal Basis of the Obligation to File for Insolvency
Grounds for Filing under the Insolvency Code (InsO)
The obligation to file for insolvency proceedings in Germany is primarily based on §§ 15 et seq. InsO. For legal entities such as corporations, the managing directors or boards are required, upon the occurrence of certain insolvency grounds—particularly insolvency (§ 17 InsO) and over-indebtedness (§ 19 InsO)—to file for insolvency with the competent insolvency court immediately, but no later than within three weeks.
Scope and Limits of the Duty to Examine
The corporate representatives are obliged to continuously monitor the economic situation and to promptly act upon the occurrence of grounds for filing. The calculation of the deadline begins upon actual knowledge or grossly negligent ignorance of the occurrence of the filing ground. A meticulous documentation of all examination steps is indispensable to be able to demonstrate correct fulfillment of legal duties in case of liability.
Formal Requirements for the Insolvency Filing
Importance of Formal Requirements
The insolvency application is subject to numerous formal requirements, whose non-compliance can have severe legal consequences. According to § 13 InsO, the application must be submitted in writing, with the relevant facts and grounds for filing substantiated and supported by appropriate documents.
Filing by Corporate Bodies
For the corporate representatives, a handwritten signature is mandatory, as the authorization to file is a highly personal duty. An effective filing by authorized representatives (e.g., advising attorneys) requires an explicit, usually written, and court-disclosed power of attorney. The handwritten signature is a compulsory form requirement; even formal deficiencies often lead to invalidity of the filing, resulting in a continuing duty to file.
Legal Consequences of Faulty or Omitted Filing
Continuation of the Obligation to File
An insolvency application that is legally ineffective, whether due to substantive or formal deficiencies, does not trigger liability protection for the corporate bodies. The obligation to file remains. This particularly applies to cases in which the application was not signed handwritten, was only “announced”, or was submitted with a suspensive condition.
Liability of Organs and Criminal Consequences
If a required insolvency application is not filed, not filed in time, or not filed properly, this results in personal liability of the managing directors pursuant to § 15b InsO as well as further corporate and tax law claims for damages. Furthermore, omission can lead to criminal penalties (§ 15a InsO, § 283 StGB). It should be noted that the presumption of innocence applies in ongoing investigations or main proceedings (Art. 6 para. 2 ECHR).
Practical Issues and Planned Reforms
Typical Sources of Error and Current Jurisprudence
Errors often already arise at the formal filing level. According to current case law (e.g., decision of the BGH, Az. IX ZB 10/08), an application without a handwritten signature is not effective. Inadequate explanations regarding the type of insolvency grounds or missing financial documents regularly lead to rejection. Courts require a substantiated and comprehensible presentation of the company’s situation, such as submission of financial status, liquidity planning, and current balance sheet.
Outlook and Relevance for Corporate Practice
Not least due to planned reforms in restructuring and insolvency law, the sense of responsibility of corporate bodies will be further strengthened. The goal is to improve and legally secure crisis management in order to minimize liability and avoidance risks and to exploit potential restructuring opportunities at an early stage.
Summary
The obligation to file for insolvency proceedings for corporations is subject to strict substantive and formal requirements. Mistakes in the application, especially regarding the personal signature and the substantive justification, can lead to significant civil and criminal consequences. To adequately meet these complex obligations and avoid risks, thorough legal advice is essential. For further questions or uncertainties regarding the procedure, it is advisable to seek professional support – for example, through the insolvency law advice of MTR Legal Attorneys.
