The settlement can only come about with the help of the creditors. This is an agreement between the debtor and his creditors in order to avert impending bankruptcy.
The comparison is based on the idea that a debtor who is currently bad and who has a chance of survival should be more important to the creditors than a debtor whose existence is ended by bankruptcy. On the one hand, this gives them the chance to receive a higher proportion of their claims than in bankruptcy, and on the other hand, they can obtain a possibly important customer.
Types of comparisons
According to the content:
- Forbearance comparison: the debtor offers a repayment plan to which the creditors must agree (moratorium). In principle, this is a conversion from short-term to long-term debt capital.
- Remission comparison: Here the creditors waive part of their claims (quota comparison).
- Liquidation settlement: the debtor leaves his company to the creditors for liquidation and thus ceases his activities.
After the conclusion:
- the out-of-court settlement that comes about without the involvement of the court and is often not known to the outside world because it is only concluded with a few creditors;
- the judicial settlement, which is only carried out with the participation of a court and under the direction of a settlement administrator in accordance with the statutory provisions.
Out of court settlement
In the case of an out-of-court settlement, the creditor often only approaches a few creditors, describes the situation and makes suggestions for resolving the difficulties. If the comparison comes about, mostly as a moratorium or as a quota comparison - an agreement is concluded about it. The advantages are that only those involved know about it, the solvency is thus retained externally, the costs are low, and the comparison can be carried out quickly.
The judicial settlement first requires an application to initiate settlement proceedings at the competent local court. The debtor submits the application, enclosing an overview of the company's assets and earnings, a proposal for a settlement and a declaration as to whether settlement or bankruptcy proceedings have been opened over the past 5 years over his assets or whether he has made an affidavit Has.
The application has the effect that the district court appoints a preliminary settlement administrator, the application is published and an expert opinion is obtained from the Chamber of Commerce and Industry. The court then examines the application and makes a decision. If the application is rejected, this leads to the opening of subsequent bankruptcy proceedings (see bankruptcy).
The opening of the settlement procedure is published, a settlement administrator is appointed by the local court and the creditors receive notification of the settlement date and the settlement proposal. The settlement administrator examines the debtor's economic situation and monitors its management. A creditors' council can be set up to support the settlement administrator.
In the settlement date, the creditors vote on the settlement proposal. A comparison is made if ...
in the case of a proposed settlement rate of 50% and more, the majority of the present and written consenting settlement creditors agree with at least 75% of all claims
with a proposed settlement ratio of 35% to less than 50%, the majority of the settlement creditors with 80% of all claims agree to the settlement.
The procedure is canceled if the debtor has fulfilled his obligations from the settlement. If the debtor is in default, the deferral or remission for the obligee with whom the debtor is in default becomes invalid.