Restschuldbefreiung
in 12 Monaten mit
Privatinsolvenz in Irland
Insolvenzverfahren in England: So funktioniert es! (Rechtsgrundlagen im Überblick)
Hier das entscheidende englische Gesetz im Original unter besonderer Heraushebung der Restschuldbefreiung (discharge)
Section § 281 des Insolvency Act. 1986 – Effect of discharge
(1) Subject as follows, where a bankrupt is discharged, the discharge releases him from all the bankruptcy debts, but has no effect
(a) on the functions (so far as they remain to be carried out) of the trustee of his estate, or
(b) on the operation, for the purposes of the carrying out of those functions, of the provisions of this Part; and, in particular, discharge does not affect the right of any creditor of the bankrupt to prove in the bankruptcy for any debt from which the bankrupt is released.
(2) Discharge does not affect the right of any secured creditor of the bankrupt to enforce his security for the payment of a debt from which the bankrupt is relased.
(3) Discharge does not release the bankrupt from any bankruptcy debt which he incurred in respect of, or forbearance in respect of which was secured by means of, any fraud or fraudulent breach of trust to which he was a party.
(4) Discharge does not release the bankrupt from any liability in respect of a fine imposed for an offence or from any liability under a recognisance except, in the case of a penalty imposed for an offence under an enactment relating to the public revenue or of a recognisance, with the consent of the Treasury.
[F1 (4A) In subsection
(4) the reference to a fine includes a reference to a confiscation order under Part 2, 3 or 4 of the Proceeds of Crime Act 2002.]
(5) Discharge does not, except to such extent and on such conditions as the court may direct, release the bankrupt from any bankruptcy debt which
(a) consists in a liability to pay damages for negligence, nuisance or breach of a statutory, contractual or other duty, [F2 or to pay damages by virtue of Part I of the Consumer Protection Act 1987, being in either case] damages in respect of personal injuries to any person, or
(b) arises under any order made in family proceedings [F3 or under a [F4 maintenance calculation] made under the Child Support Act 1991]. …
(6) Discharge does not release the bankrupt from such other bankruptcy debts, not being debts provable in his bankruptcy, as are prescribed.
(7) Discharge does not release any person other than the bankrupt from any liability (whether as partner or co-trustee of the bankrupt or otherwise) from which the bankrupt is released by the discharge, or from any liability as surety for the bankrupt or as a person in the nature of such a surety.
(8) In this section — [F5“family proceedings” means —
(a) family proceedings within the meaning of the M1 Magistrates’ Courts Act 1980 and any proceedings which would be such proceedings but for section 65(1)(ii) of that Act (proceedings for variation of order for periodical payments); and
(b) family proceedings within the meaning of Part V of the M2 Matrimonial and Family Proceedings Act 1984.] “fine” means the same as in the Magistrates’ Courts Act 1980; and “personal injuries” includes death and any disease or other impairment of a person’s physical or mental condition.
Annotations: Amendments (Textual) F1 S. 281(4A) inserted (24.3.2003 except to the extent that it relates to Part 3 of 2002 c. 29) by 2002 c. 29, ss. 456, 458(1)(3), Sch. 11 para. 16(2); S.I. 2003/333, art. 2, Sch. (subject to arts. 3-13 as amended by S.I. 2003/531) F2 Words substituted by Consumer Protection Act 1987 (c. 43, SIF 109:1), ss. 41(2), 47(1)(2), 48, Sch. 4 para. 12 F3 Words in s. 281(5)(b) inserted (5.4.1993) by Child Support Act 1991 (c. 48), s. 58(13), Sch. 5 para. 7; S.I. 1992/2644, art. 2 F4 Words in s. 281(5)(b) substituted (3.3.2003 for specified purposes, otherwise prosp.) by 2000 c. 19, ss. 26, 86(1)(2), Sch. 3 para. 6 (with s. 83(6)); S.I. 2003/192, art. 3, Sch. F5 Definition of „family proceedings“ substituted (14.10.1991) for the definitions of „domestic proceedings“ and „family proceedings“ by Children Act 1989 (c. 41, SIF 20), ss. 92, 108(6), Sch. 11 Pt. II para. 11(2), Sch. 14 para. 1(1); S.I. 1991/828, art. 3(2) Modifications etc. (not altering text) C1 S. 281(4) extended by Drug Trafficking Offences Act 1986 (c. 32, SIF 39:1), s. 39(5) S. 281(4) extended (3.2.1995) by 1994 c. 37, ss. 65(3), 69(2) (with s. 66(2)) S. 281(4) extended (31.3.1996) by 1995 c. 20, s. 113(6); S.I. 1996/517, art. 3(2) (subject to transitional provisions and savings in arts. 4-6, Sch. 2) S. 281(4) extended (S.) (1.4.1996) by 1995 c. 43, ss. 47(4), 50(2) C2 S. 281(4) amended by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), SS. 123, 170, Sch. 8 para. 6, Sch. 15 para. 110 C3 S. 281(4) amended by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), SS. 45(4), 47(4)(a). Marginal Citations M1 1980 c.43(82). M2 1984 c.42(49:3).
Eine Annulierung des Verfahrens kann seitens des englischen Gerichtes erfolgen gemäß Section 282 des Insolvency Act. 1986, sofern es feststellt, z.B. durch Beweise der deutschen Gläubiger, dass der COMI nur zum Schein nach England verlegt wurde. Neuerdings wird diskutiert, ob dabei auch sehr wenig objektivierbare Gründe, wie die Dauerhaftigkeit und Motivation des Entschlusses, nach England zu gehen, zu bewerten sind. In extremen Fällen wird dies im Rahmen der Gesamtschau des jeweiligen Einzelfalles und aller Indizien/Beweislagen schon eine Rolle spielen können. Juristisch begäbe sich die Rechtsprechung – speziell die deutsche – dabei auf Glatteis, da mit nicht objektivierbaren Motiv-Forschungs-Versuchen, die europäische Insolvenzordnung ausgehebelt werden soll. Dies wäre eindeutig unzulässig.
Englisches Recht gilt nur in England und Wales
Das hier dargestellte Verfahren der Insolvenz in England gilt nur für England und Wales. Das Vereinigte Königreich hat kein vereintes Rechtssystem.
England und Wales bilden zusammen nur ein – obwohl schon das wichtigste – Rechtsgebiet.
Die Kanal-Inseln und die Isle of Man, Schottland und Nordirland haben ihre eigenen Rechtssysteme.
Insolvenz auf den Kanal-Inseln
Eine Insolvenz in England gemäß englischem Insolvenz-Recht – wie hier geschildert nach dem Insolvency Act. 1986 -, gilt nur in England und Wales.
In den übrigen englandnahen Gebieten herrschen teils sehr unterschiedliche Normen. Das EU-Insolvenzrecht ist hier nicht unmittelbar anwendbar.
Die Kanal-Inseln sind weder Teil des Vereinigten Königreichs noch Kronkolonien, sondern als Kronbesitzungen (engl. crown dependencies: Vogteien Guernsey und Jersey) direkt der britischen Krone unterstellt (http://de.wikipedia.org/wiki/Alderney) .
Im Einzelnen
The law on insolvency in the Channel Islands displays both its roots in the customary law of Normandy as well as influences from civil law developments in neighbouring France and, more lately, the influence, as far as corporate liquidation is concerned, of comparable rules in the United Kingdom. As a mixed jurisdiction, the laws in Jersey and Guernsey provide a fascinating insight into the juxtaposition of rules from different legal families with both civil and common law influences. Insolvency Procedures in Guernsey 03 May 2010 Guernsey has different types of procedure for dealing with personal insolvency on the one hand, and corporate insolvencies on the other. There are also specific statutory provisions dealing with the dissolution of partnerships and limited partnerships. Although the principal features of Guernsey’s insolvency procedures are for the most part set out in statute, there is no comprehensive body of procedural rules to supply the detailed workings. For that reason, where procedural disputes arise, it is necessary for the parties to agree, or ultimately for the court to impose, a pragmatic solution.
Corporate insolvency procedures are encountered much more frequently in practice than individual bankruptcy, and indeed Guernsey’s law of bankruptcy is relatively undeveloped.
Generally speaking, whenever the debtor is an individual, it is usually more advantageous for the creditor to resort to ordinary enforcement rather than formal insolvency procedures. Creditors can enforce their claims against cash assets and other movable property simply by instructing HM Sheriff to arrest the debtor’s personalty. Enforcement against land and buildings, on the other hand, is governed by the complicated “saisie” procedure.
Personal Insolvency
The Guernsey equivalent of formal bankruptcy is triggered by an “application for a declaration of insolvency”, which is made to the court. The procedure has never been popular and has been used on only a handful of occasions since it was last reformed in 1929. Usually it is the debtor himself who must apply for the declaration but, provided certain conditions are met (importantly, there must be a désastre first), one or more of his creditors may do so. After the declaration has been made, the debtor must surrender his assets and co-operate with a committee of creditors which has powers to investigate his conduct leading up to insolvency and the state of his affairs generally. Fraudulent preferences can be set aside, but only if they were contracted relatively recently (in most cases 3 months) prior to the application. There are serious restrictions on the debtor’s ability to engage in trade or obtain credit, which means that this option is generally unappealing to debtors. Furthermore, the duration of the state of insolvency is up to the court’s discretion, rather than being fixed by law, and depends largely on the debtor’s conduct. In theory, it could last forever. The only real advantage for the debtor is that all debts prior to the insolvency are released. From the debtor’s point of view, this is called “obtaining the benefit of renunciation”.
Development of insolvency legislation in the Channel Islands
In Guernsey the 2008 Company law significantly enhanced the insolvency options on the island. The introduction of an administration regime was a major development which has been used extensively and to good effect. A detailed body of insolvency rules has not developed on the island, and practitioners and creditors must instead rely on the small body of insolvency legislation and case law. In Jersey, the désastre and winding up provisions have been in place for a significant period of time and no immediate changes to legislation are expected. Developments are restricted to case judgements. Of particular note is the broadening use of just and equitable applications, and grounds for winding up. We expect that Guernsey will undertake a review of its insolvency regime which may lead to additional codification of matters currently referred to court including, for example, interim distributions and provisions to carry over to liquidation the acts taken in administration. Whilst the position is being considered for review and comparison to other offshore jurisdictions, existing legislation has allowed practical dealing with cases that have emerged to date.
Recognition of other jurisdictions procedures, is this an option on the islands?
There is no automatic recognition of overseas procedures in the islands. Neither Jersey nor Guernsey are subject to the European Insolvency Regulations nor have they adopted the UNCITRAL model law. However, both islands’ courts will consider requests for recognition on the merits of the case. There have been a number of instances where Administration procedures have been commenced by English courts in respect of structures established on the islands, either due to a COMI argument or, in the case of Jersey, as a result of a request being made to the English courts by the Jersey Court. This is particularly relevant to Jersey as there is no ‘rescue’ type insolvency procedure available under Jersey law.
Quelle: Restructuring, Forensic and Regulatory Services at Deloitte LLP.
England and Wales
The issue of choice of law does not arise in English insolvency proceedings, as it is the Insolvency Act 1986 that applies.
Where a foreign company is in liquidation in the country of its incorporation and a winding up order is made in England, this would generally be regarded as ancillary, and does not relieve the English court of its obligation to apply English law to the resolution of any issue in the winding-up [note 21]. 42.18 Channel Islands – Jersey The court having jurisdiction in relation to insolvency law (see paragraph 42.10) in the UK is required to assist the courts having corresponding jurisdiction in Jersey [note 22] [note 23].
Jersey has a reciprocal arrangement with the UK in that courts having jurisdiction in relation to insolvency law in Jersey are required to assist the courts having corresponding jurisdiction in the UK [note 24] [note 25]. Where the official receiver wishes to apply for an order to take proceedings in relation to property situated, or a cause of action existing, in Jersey then he/she may follow the procedure outlined inparagraph 42.14.
Jersey is not part of the European Union and, therefore, the EC Regulation on Insolvency Proceedings (see Chapter 41) does not apply. Jersey has not implemented the UNCITRAL Model Law on Cross-Border Insolvency (see Parts 2 and 3 of this Chapter), and is not expected to do so.
Channel Islands
Bailiwick of Guernsey
The Bailiwick of Guernsey consists of the Royal Court of Guernsey, the Court of Alderney and the Court of the Seneschal of Sark, being all the inhabited islands of the Channel Islands except Jersey (see paragraph 41.18 for information on Jersey). The court having jurisdiction in relation to insolvency law (see paragraph 42.10) in the UK is required to assist the courts having corresponding jurisdiction in the Bailiwick of Guernsey [note 26] [note 27]. The Bailiwick of Guernsey has a reciprocal arrangement with the UK in that courts having jurisdiction in relation to insolvency law in The Bailiwick of Guernsey is required to assist the courts having corresponding jurisdiction in the UK [note 28]. Where the official receiver wishes to apply for an order to take proceedings in relation to property situated, or a cause of action existing, in The Bailiwick of Guernsey, he/she may follow the procedure outlined in paragraph 42.14.
The Bailiwick of Guernsey is not part of the European Union and, therefore, the EC Regulation on Insolvency Proceedings (see Chapter 41) does not apply. The Bailiwick of Guernsey has not implemented the UNCITRAL Model Law on Cross-Border Insolvency (see Parts 2 and 3 of this Chapter).42.20
Isle of Man
The court having jurisdiction in relation to insolvency law (see paragraph 42.10) in the UK is required to assist the courts having corresponding jurisdiction in the Isle of Man [note 29] [note 30]. The High Court of the Isle of Man is required to assist the courts having bankruptcy jurisdiction in the UK [note 31]. This does not extend to company cases because there is no specific provision in Isle of Man legislation to offer assistance in liquidations. Where the official receiver has a need to deal with a company’s affairs in the Isle of Man, then it may be the case that the only option will be to open parallel proceedings in that jurisdiction (seeparagraph 42.28 for more information on opening concurrent proceedings).
(Dieses Kapitel befindet sich im Ausbau und wird laufend durch die neuesten und wichtigsten Rechtsgrundsätze und Entscheidungen zur Insolvenz in England ergänzt.)