Bankruptcy filing requirements for companies

The bankruptcy filing in private bankruptcy

The bankruptcy filing requirement is relevant above all for companies, less for private individuals.

The good news in advance: For private individuals, insolvency or over-indebtedness is not a direct application for insolvency. A failure to do so is therefore not punishable.

However, in some cases, it is not advisable to wait too long to file for bankruptcy. For debtors could thereby risk their debt relief. This can be refused, inter alia, if

  • despite (imminent) insolvency or over-indebtedness and no prospect of an improvement in the economic situation, the opening of insolvency proceedings was delayed, whereby the satisfaction of the insolvency creditors in the last year before the bankruptcy was deliberately or grossly negligent.

Therefore, even private individuals should not miss the right time of the bankruptcy opening. The same applies to individual companies. Although there is no obligation to file for insolvency with individual companies either, there may also be disadvantages here.

It’s best to consult with Bankruptcy Attorneys’ Area of Practice!

The insolvency filing requirement for companies

For legal entities, ie mainly companies, however, applies a bankruptcy petition obligation in case of imminent insolvency and/or over-indebtedness. § 15a of the Insolvency Code (InsO) states:

(1) If a legal entity becomes insolvent or over-indebted, the members of the representative body or the liquidators must submit an opening request without culpable hesitation, but no later than three weeks after insolvency or over-indebtedness.

If there is an obligation to file for bankruptcy, GmbH CEOs etc. usually have three weeks to spare.

For example, the insolvency application obligation applies to a limited liability company, but also to an association. However, the bankruptcy filing obligation for the association can be found in § 42 (2) sentence 1 of the Civil Code (BGB).

What does the obligation to file for insolvency mean for companies?

Is a company or similar? is no longer able to meet its due payment obligations, or is likely to occur in the near future, it is insolvent or threatened with insolvency and obliged to file for bankruptcy.

The same applies if the company is over-indebted. If the liabilities cannot be covered by the existing assets, the insolvency filing obligation of the GmbH etc. arises because of over-indebtedness.

As a rule, the petition for insolvency must be filed within three weeks without culpable delay. Otherwise, those responsible may be liable to prosecution for insolvency.

Who has to file for bankruptcy?

Normally, for example, the insolvency application obligation of a limited liability company does not apply directly to shareholders, but to the respective managing director. However, in the case of so-called management-less companies without directors, it is also possible that shareholders are required to file for insolvency.

As a rule, the following persons, in particular, are affected by the bankruptcy filing requirement:

It is also punishable who ignores the insolvency filing obligation at corporate companies (UG).

  • Organs of legal persons
  • Managing Director and Liquidators of a GmbH
  • Board members and liquidators of an AG and KGaA
  • Board members and liquidators of a registered cooperative
  • Board members of a legally qualified association
  • Partnerships without natural persons as personally liable partners

Above all, corporations are therefore affected by the obligation to file for insolvency. The partnership (eg OHG or GbR), however, is usually run by shareholders who are personally and unrestrictedly liable. Creditors, therefore, have more options, such as foreclosure measures, to obtain their rights than is the case with the corporation. Therefore, there is usually no requirement for insolvency filing with limited partnerships (KG).

Note: Even without the obligation to file for insolvency, partnerships should be advised by a lawyer. The same rules apply as for private individuals – in case of doubt, the shareholder can be denied, for example, the waiver of residual debt.

Nigeria adopts shock treatment to save its banking sector

The leaders of five banks were removed from office. Contrary to what was feared, the announcement of this plan did not provoke panic among customers.

On the evening of August 17, Nigeria could breathe. The shock treatment designed to save the banking sector from a risk of collapse unveiled just before the weekend, the first plan of this magnitude ever implemented in Africa, did not provoke a panic that could have to spoil everything.

On Friday, August 14, Central Bank Governor Mallam Sanusi Lamido Sanusi told presidents and CEOs of five Nigerian banks (Afribank, Finbank, Intercontinental Bank, Oceanic Bank and Union Bank) that they were dismissed. And to indicate that the issuing institution would intervene to save their institutions by injecting 400 billion nairas (1.8 billion euros) to avoid bankruptcy due to loans not reimbursed, called “unproductive”.

The scale of these bad loans has forced the central bank to intervene repeatedly since 2008 by lending money to these bank for payday loan consolidation. President Umaru Yar’Adua then sought the advice of the former governor of the central bank, architect of the reform of the sector in 2004, the seriousness of the situation. He had seen no reason to act. He was replaced on June 4th. His successor, Sanusi, is the author of the rescue plan that came into effect on Monday.

Fourteen other Nigerian banks are currently being audited by the central bank. “The total unproductive loans amount to 1 143 billion nairas,” said Friday, Mallam Sanusi Lamido Sanusi.

The contingency plan also had the opposite effect. Big was the fear of seeing the account holders, whose number has increased sharply in Nigeria since the sector reform in 2004, come to withdraw their deposits, while the stock prices of the banks would plunge. Security forces had been stationed near the settlements. It was also decided to freeze their listing on the Stock Exchange in the immediate future. According to a statement by his spokesman on Monday, Nigerian President Umaru Yar’Adua “wishes to assure all Nigerians that their deposits are safe since the federal government will continue, in consultation with the central bank, to ensure that no bank can collapse or become insolvent. ” He also asked the police to help the new bank executives recover loans that have not been refunded.

According to concordant sources, some of these impaired loans were made to invest in the Nigerian Stock Exchange or in the financing of oil-related activities (80% of Nigeria’s revenues) during the period of soaring crude oil prices. (Raised up to $ 140 a barrel). When prices dipped, in the second half of 2008, financial mounts collapsed.


At the same time, unsecured loans were made to clients on the basis of their political links. It is also this practice that the package of reforms intends to tackle, so as to give Nigeria banks that can locate in the rest of Africa.

This unprecedented rescue measure should soon be followed by other consequences. In the future, says a source involved in the Nigerian financial system, “the concentration in the banking sector will continue. There will probably be at the end only five major banks in the country”, against 24 currently, and more Another source believes that the mechanisms limiting the share of open capital to foreign companies could soon be relaxed, allowing giants like Barclays or Standard Chartered to take major interests in the Nigerian banking sector.

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